Features of the process of reinstatement of those dismissed due to staff reduction, tips for filing a claim

Reinstatement at work after layoff is possible only if there are violations during the dismissal procedure. Any mistake by the employer may result in the employee being reinstated in the workplace by a court decision. Judicial practice has many similar situations when not all vacancies were offered or the layoff process occurred during the employee’s pregnancy.

What errors in the reduction procedure can lead to restoration

All activities related to dismissal due to reduction are strictly regulated in regulations. A minimal deviation from the established rules can lead to the company having to reinstate the employee by court order, bring the employee back and compensate him for lost earnings .

The most significant points that may become the basis for legal claims by the abbreviated person include the following.

Mandatory written prior notice to the employee

For 2 months (Part 2 of Article 180 of the Labor Code of the Russian Federation). The absence of written notification of the upcoming staff optimization within the established period is a significant formal violation of the dismissal procedure.

KEEP IN MIND

Legislative guarantees regarding redundant personnel apply only to organizations (definition of the Constitutional Court of the Russian Federation dated March 20, 2014 No. 476-O). For individual entrepreneurs, the duties of notifying employees and paying them benefits are not established, but can be introduced by agreement with the employee in the text of the employment contract (Article 307 of the Labor Code of the Russian Federation).

Mandatory offer to the employee of other remaining vacant positions

If available, and in which he can work, taking into account his state of health.

If vacancies were not offered or not all were offered and not in all 2 months preceding the dismissal, then this is a violation .

Accounting for the preferential right of certain categories of workers to remain at work

Regulated by Part 1 and Art. 179 of the Labor Code of the Russian Federation).

The presence of groups of workers whose dismissal due to layoffs is expressly prohibited

This:

• pregnant women;
• single mothers (fathers) raising minors;
• women (men) with children under 3 years of age.

Ignoring one of the above points with a high degree of probability may become the basis for canceling the dismissal order due to reduction. At the same time, in addition to the documentary part of the procedure, the presence of actual and not feigned (contrived) staff reduction may be important.

An example of making an entry in a work book about an employee’s reinstatement at work

What may cause a reduction to be considered fictitious?

The legislation does not define the concept of fictitious reduction in any way. In practice, it is associated with the desire of companies to reduce their costs without any apparent reason for this, or with getting rid of unwanted employees by firing them.

Signs of such an illegal layoff procedure may include:

• of the same position back into the workforce after the “downsizing” (decision of the Supreme Court of the Russian Federation dated January 14, 2010 No. 5-B09-136) or a little later (decision of the Constitutional Court of the Russian Federation dated 17.2008 No. 1087-O-O): in the event of proceedings there will be study the staffing schedule before and after termination of the employment contract, as well as job descriptions;
• the introduction, after parting with a redundant person, of a position with a different name, but with almost identical functionality (appeal ruling of the Moscow City Court dated 09/06/2016 in case No. 33-34563/2016): this fact is also quite easy to establish by comparing job descriptions.
• redistribution of the responsibilities of a laid-off employee between one or more employees without other economic or technological reasons: i.e. the transfer of part of the responsibilities to another person is legal in itself, but it must be taken into account whether there were objective grounds or whether this is a forced measure of the employer in connection with an unjustified reduction number (cassation ruling of the Belgorod Regional Court dated December 27, 2011 in case No. 33-4725). Risks remain in the case of transfer of the work of a dismissed person to a party under a civil law contract (cassation ruling of the Supreme Court of Karelia dated December 2, 2011 No. 33-3554/2011);
• the reduction of only one employee from the entire organization, if there are no visible organizational, technological, or economic grounds for this, can be regarded as discrimination (definition of the Constitutional Court of the Russian Federation of December 17, 2008 No. 1087-О-О).

○ Word to the editor.

Unfortunately, I can state that the legal awareness of an ordinary Russian citizen certainly leaves much to be desired, especially with regard to their labor rights.

When asking questions to their clients, they often answer something like “that it’s long, expensive and difficult.” It’s usually easier to give up and start life from scratch... or look for a new job, even if they threaten to fire you from your old one.

Reinstatement at work refers precisely to such issues, and it happens that a person who has already defended his right to work in the state labor inspectorate, through the court, after a reduction in staff, or after returning from the army, prefers to take the path of least resistance, even if the job is the same he was completely satisfied with the place.

We will not consider this aspect today, but will find out in detail what is defined by “reinstatement”, in what cases it arises, how to use your rights and not forget about your responsibilities, and more simply, without legal definitions: How to be reinstated at work?

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After what time is it possible to restore a reduced position?

is no minimum period during which a previously removed position can be reintroduced after a reduction .

In practice, reinstatement of a reduced position by court is possible 2 or 3 months after dismissal.

The introduction of a position back into the state is formalized by a free-form order.

SAMPLE ORDER ON INTRODUCTION OF A POST TO THE STAFF BY COURT

If the organization decided to return the reduced position for other reasons, then the order must focus on the justification/changed circumstances of doing business. However, we recommend doing this only after 3-6 months from the date of dismissal - to reduce the risks of possible claims from the former employee.

SAMPLE ORDER ON INTRODUCING A POSITION TO THE STAFF, IF NECESSARY

Time limits for applying to court for reinstatement at work

The legislator clearly defines the deadlines for an employee to apply to the judicial authorities for protection of his violated rights.

As a general rule, the deadline is set at 3 months from the moment the employee learned of the violation by the employer.

In terms of illegal dismissal, the legislator has defined a special period of 1 month.

It should be noted that if an employee misses the deadline for going to court for good reasons, this deadline can be restored. The issue of reinstating the deadline is decided by the court, for which the employee must draw up a petition to restore the missed deadline.

Notifying an employee of dismissal

For an employee, the layoff procedure begins with receiving notice of dismissal. According to Part 2 of Art. 180 of the Labor Code of the Russian Federation, each employee must be notified of dismissal personally against his signature at least 2 months before dismissal. The date the employee received the notice is of decisive importance.

Therefore, if for some reason it is impossible to personally warn the employee (for example, during a period of incapacity), you can:

• send him a letter with a list of the contents and a notification of delivery by post (appeal ruling of the Supreme Court of the Altai Republic dated 06/03/2015 in case No. 33-490);
• notify him by fax (appeal ruling of the Arkhangelsk Regional Court dated January 14, 2013 in case No. 33-0114/2013).

Such methods of notification are recognized by the courts as legal. The judges note that the legislator does not indicate specific forms and methods for the employer to fulfill its obligation to personally notify the employee of the upcoming dismissal due to staff reduction.

If the warning is sent by mail due to the fact that the employee refused to sign it, it is advisable to supplement the letter with a copy of the act of the employee’s refusal to sign the notification. This will establish the date when the employee was actually notified of the layoff. Otherwise, the court may decide that due to a change in the employer’s plans, the notification period should be counted from the date the employee receives the new notification (appeal ruling of the Moscow City Court dated October 14, 2014 in case No. 33-34655/2014).

5.The employee is not offered (or not all suitable) vacancies are offered

As a rule, companies try to offer vacancies to employees, fulfilling Art. 81 Labor Code of the Russian Federation. It is rare that employers directly violate the law. The problems arise rather in the details of the job offer. Often, courts reinstate employees precisely because not all vacancies were offered. The courts carefully check staffing schedules and job offers to see if they match (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court dated 02.02.2015 in case No. 33-949/2015, A-9).

It would also be a mistake not to offer the employee lower-level vacancies. For example, an engineer being laid off should be offered in writing vacancies for workers, cleaners, security guards and other lower-level personnel. Should I offer a higher position? You shouldn’t, but only if you know for sure that the employee does not have diplomas that allow him to take a higher position. To make sure of this, indicate in the notice that the employee has the right to provide other documents he has about education, experience, etc.

If you have a lot of laid-off workers and a lot of vacancies, the employer decides which of those laid off and which vacancies are offered first, this will not be a mistake (see, for example, the Appeal ruling of the Supreme Court of the Republic of Bashkortostan dated 04/17/2014. Appeal ruling of the Moscow City Court dated 12/24/2015 in case No. 33-47158/2015). The employer is not required to offer temporarily vacant positions (for example, if the employee is on maternity leave); this is also not considered an error when offering vacancies (see, for example, Determination of the Moscow City Court dated May 29, 2014 No. 4g/8-3516).

Is it possible to renew the position on the staff list?

The organization has the right to restore a position similar to the one it had during the reduction, provided that the procedure for dismissing an employee to reduce the number and staff was carried out correctly and legally. This follows from paragraph 10 of the resolution of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” which states that for the purpose of effective economic activity, the organization makes all personnel decisions under its own responsibility.

The most important point in this matter is whether the reduction was real or formal.

How long will it take?

If the reduction was not carried out to eliminate an “undesirable employee” and the employer can prove that the entire procedure was carried out in accordance with the law, then the position can be restored after any period of time at the discretion of the organization. We talked about how, in accordance with the law, the dismissal procedure for redundancy should be carried out here.

Recovery of lost earnings

The employer must pay the dismissed employee monetary compensation for forced absences. The employee is reinstated in his position immediately after the relevant court decision is made (Article 396 of the Labor Code of the Russian Federation). Simultaneously with the entry into force of the resolution, the person must be transferred the amount of money accrued during the period from illegal dismissal to full reinstatement.

The exact time is set by the court or the labor inspectorate after the employee writes a corresponding application; the duration of this period is not limited. If it is determined that a year has passed since the illegal dismissal, the manager will be obligated to pay the employee the average salary for the period of inactivity.