What is more profitable when reducing staff: resign on your own or wait for the order to reduce the number of employees?

Home / Labor Law / Dismissal and layoffs / Retrenchment

Back

Published: December 23, 2019

Reading time: 4 min

0

442

The employer decides to reduce the staff of the enterprise and offers to resign of his own free will. Should I agree or is there a better option?

• Payments due upon redundancy
• Who will be laid off first?
• The redundancy dismissal procedure: what it looks like

Reduction of staff - is it legal?

Many people are interested not only in who is laid off first by law, but also to what extent such an action is legal.

The Labor Code of the Russian Federation actually mentions that you can say goodbye to an employee due to layoffs. This is normal, although not the most pleasant phenomenon. The main thing is not to violate the established rules of conduct.

It is worth remembering that not every subordinate is laid off. More about exceptions a little later. First, let's look at the staff reduction process in detail.

Who is being laid off first in Ukraine?

Let's consider the practice of resolving similar issues about who is subject to reduction in other countries. Thus, according to Ukrainian legislation, it is worth noting that in Ukraine they are guided by the legal acts of the Labor Code. Thus, according to Article 42 clause 1, the same categories of employees as in Russia are not subject to reduction.

Who gets fired first is explained in this video:

Unfortunately, no one can be guaranteed to be protected from job loss. However, having a clear understanding of your rights, you can avoid many unlawful and difficult situations even when reorganizing an enterprise, which is the only place for a citizen to receive a stable income.

Ambiguity of opinions

According to the Labor Code, who will be laid off first? Answering this kind of question can be problematic.

This is due to the fact that the labor legislation of the Russian Federation does not have any instructions regarding which positions and which people to lay off. This issue is resolved exclusively on an individual basis by the management of an individual company.

But if we are talking about the reduction of workers in one field of activity and position, you can find some specifics. Who gets laid off first?

Danger is near

Understanding this issue is not as difficult as it seems. But as we have already said, only if we are talking about reducing the number of employees occupying the same positions.

In this case, abbreviate first:

• less skilled workers;
• people with low work speed;
• persons who have ever violated an employment contract;
• people whom the employer considers unscrupulous (and can prove this);
• old people.

In fact, the issue being studied is considered “slippery.” Indeed, in real life, it is problematic to accurately predict who will be laid off first.

What is a reduction under the law?

In this regard, the law distinguishes two concepts - reduction of either the size of the enterprise or the staff itself. Article 81 of the Labor Code of the Russian Federation does not provide a definition of these terms, and in practice it is practically insignificant.

To be specific, in the process of reducing the number of employees of the enterprise, the position will be retained in the staffing table, while employees are being laid off. If there is a reduction in the staff itself, the position will be eliminated.

Reasons for reduction:

• First, this is the difficult economic situation in the country.
• Merger or reorganization, as well as acquisition of companies.
• Abbreviation for internal enterprise optimization.

If a position is removed from the staffing table, the company carries out a procedure to reduce it.

What may influence the decision

There are a number of factors that can influence an employer's decision to reduce its workforce.

These include:

• employee qualifications;
• customer reviews (if available);
• performance;
• personal qualities of the employee;
• personal attitude of the employer towards the subordinate;
• family circumstances;
• age of the subordinate.

Accordingly, almost anyone can be fired due to layoffs. But according to the Labor Code of the Russian Federation, the boss is obliged, first of all, to leave more experienced and qualified personnel in the company.

Employees with benefits

The legislator also protects the following employees, whom the employer must keep at work first of all (Article 179 of the Labor Code of the Russian Federation).

The following categories are included.

The first category is employees with high levels of productivity while maintaining quality of work.

The second category is persons with higher qualifications.

It is confirmed:

• received a certificate of completion of advanced training courses;
• a document on the results of the certification carried out in the company;
• written characteristics of management;
• thanks and other official recognition of high quality work;
• bonus orders.

The third category is employees with additional knowledge or skills:

• work with a computer at a high level;
• high level of knowledge of another language.

If the performance indicators of employees are approximately equal, the law gives preference to:

• married employees with more than one dependent person;
• in a registered marriage if the second spouse is recognized as unemployed;
• citizens who, due to work in this organization, suffer from an occupational disease or are seriously injured;
• persons who received the status of a combat veteran or disabled person of the war of 1941-1945;
• employees who continue to work in the process of advanced training as directed by the administration.

Keep in mind! All of the above indicators are taken into account only if the position in the state held before optimization is retained. If the entire structural unit is abolished, then we will be talking about other positions that may not require qualifications, so the benefits will not be taken into account here.

Thus, when the planning department is downsized, all its employees have equal rights to the position of office manager, without taking into account priority work qualities.

Dismissal procedure

Are you planning to downsize your organization? Who will be fired first? It's difficult to predict. But you should expect that more experienced, proactive, active and younger employees will be retained to continue working. After all, every company is looking for ways to get more benefits.

It is important to remember that the procedure for dismissal due to staff reduction must be followed by all employers. Otherwise, the former employee will be able to be reinstated in his position without much difficulty. For example, by going to court.

Step-by-step instructions for terminating the employment relationship between employees and management look like this:

1. Issue orders to reduce positions.
2. Notify employees of layoffs.
3. Offer subordinates other positions.
4. Issue redundancy orders.
5. Familiarize employees with the documentation.
6. Make settlements with subordinates.
7. Make appropriate entries in work books and issue documentation to those being dismissed.

In reality, everything is not as simple as it seems. And the procedure for dismissal due to staff reduction requires great attention.

Who gets laid off first at an enterprise?

Important! To avoid being laid off, the employer may offer to take advanced training courses.

If the employer did not comply with the procedure for layoffs, his decision can be appealed. To do this, you need to go to court and, if the decision is positive, the employee will be returned to his previous position. But the question is different: will he want to work in such an organization, with such a leader?

Reduction order (read more...)

Settlements with people

We found out who gets laid off first. Now it is necessary to consider other features of the process.

For example, an important point is making settlements with dismissed persons. In our case, the employer must issue each person:

• severance pay (equal to the average monthly earnings of the subordinate);
• payments for time worked (double);
• compensation for unused vacation days.

Sometimes the former employer can be persuaded to accept a third benefit. This is possible if a citizen, after being laid off, registers with the employment center (no later than 14 days after leaving work) and has not found a job within 2 months.

In fact, with the right approach to solving the task, terminating relations with subordinates due to layoffs will not cause any trouble. Conscientious employers will easily cope with this issue.

What does the employee need to do?

An employee who has received notice of future dismissal must carefully study all the guarantees provided by law.

Necessary:

• clarify which categories of persons have priority when retaining employment. Compare this list with your own status. If a dismissed citizen ends up in the category of “beneficiaries,” the administration should be notified about this in writing. It is recommended to prepare the document in duplicate. The first is handed over to management, and the second is marked as received. Such a notice confirms that the employer is aware that the person has an advantage. The document will be required when filing a complaint with the Labor Inspectorate and the Prosecutor's Office or an application to the court;
• find out about available vacancies. If any, you should request the position of interest. It is important that the offer is received, and the employee has the right to agree or refuse it. The refusal must be made in writing. If the position is not offered, the citizen has the right to demand that the employer be held accountable;
• no later than 2 weeks after dismissal, register with the employment service. These actions will help you find a job, and in case of failure, will ensure that you receive benefits within a two-month period in the amount of your previous earnings;
• do not succumb to pressure and persuasion to resign at will or on the basis of a bilateral agreement. This is a known ploy by employers to avoid paying benefits.

Qualification check

Sometimes, in order to accurately understand who gets laid off first, people are checked for their skill level. This is quite normal, although not the most common occurrence.

The test allows you to determine which workers know their job better. If there is evidence of compliance/non-compliance with the position held, it will be easier for the employer to prove his innocence if he goes to court.

As we have already said, people with low qualifications will be the first to be laid off. For testing, a commission is assembled, which will make its decision on how well the subordinate copes with the job. After certification, people are given conclusions in the established forms.

Notification Features

Who is laid off first by law? People who are not suitable for their positions for one reason or another. For example, by age or skill level.

An important feature is the preparation of a notice of termination of employment relations. The document must contain the following information:

• FULL NAME. dismissed;
• information about reduction;
• information about the date of termination of cooperation;
• alternative positions in the company that a person can take;
• justification for the decision.

As already mentioned, notifications are sent no later than 2 months before the termination of the employment relationship. Otherwise, it will not be possible to achieve the task. The dismissal procedure will be violated. This will lead to the possibility of the person being reinstated in his position.

Who can't be fired

According to labor law standards, the priority right to remain in office has:

• parents of children with disabled status;
• single mothers and same fathers;
• citizens who are the sole breadwinners of families;
• persons who have suffered serious injury or occupational illness as a result of working for this company;
• citizens with war disabled status;
• awarded the titles of Hero of Russia and the USSR or the Order of Glory;
• victims of radiation in Chernobyl and Semipalatinsk;
• undergoing training to improve their qualifications on the instructions of the employer, while continuing to work;
• authors of inventions. The USSR legislation on inventions continues to apply here.

A number of employees can be dismissed at the request of the employer only if violations are established (dismissal is allowed on the personal initiative of a citizen or by mutual agreement). The law prohibits layoffs of senior union employees at the shop floor level and above.

Also, employees holding an elective position as a representative of workers in disputes with the administration cannot resign.

Watch the video. Reduction of number or staff of employees:

Appeal

Citizens who do not agree with the reduction have the right to appeal the decision. But how to do that?

The most important thing is to meet the legal deadlines. No more than a month should pass from the date of termination of the employment relationship. During this time, the injured party can appeal either to the court or to the labor inspectorate.

If, during the study of the materials, it turns out that the layoff turned out to be illegal or carried out with violations, the employee must be reinstated in the company. Or the organization will be fined.

After being laid off, many do not return to the company where they were illegally fired. Although such situations are also not excluded. Some complain about illegal reductions only for the sake of restoring justice, without pursuing other goals.

How can you challenge an employer's decision?

If an employee who has received notice of his upcoming dismissal due to reduction has doubts about the legality of management’s actions, then the employee has the right to submit a demand to the employer to review the decision on the priority reduction .

It is drawn up in the form of a statement addressed to the head of the enterprise, describing the essence of the case and the reasons for the employee’s claims that such a decision is unfounded. The request must be accompanied by documents confirming that the employee has an advantage over other employees during layoffs, or documents the presence of which prohibits his dismissal at the initiative of the employer.

Among the documents there may even be a qualification certificate awarding the employee the 5th category of mechanic, if in the same department, under equal other conditions, a mechanic of lower qualification remains in the workplace.

If the management of the enterprise does not respond to the demand, then the next step for the employee whose rights were violated during layoff is to submit an application to the territorial labor inspectorate. The application is drawn up in any form, but in the “header” you must indicate the following information about the applicant :

1. surname, first name, patronymic;
2. place of work with the address of the enterprise or company and position held;
3. residential address;
4. contact information (phone number, email address).

In the application, describe the essence of the issue, indicating the facts of violation by the management of the enterprise of the reduction procedure and the relevant articles of the Labor Code of the Russian Federation or other legislation.

The application is accompanied by copies of all documents related to the dispute, starting from the notification and ending with those that prove violation of the law by the management of the enterprise.

Important! No more than 1 month should pass from the receipt of the notification to the application to the labor inspectorate.

The application must be reviewed within 15 days . Sometimes the decision is extended, but not more than 15 days. In any case, the decision is made no later than 1 month.

The labor inspectorate is not always able to make a positive verdict in favor of the employee due to some organizational and authoritative reasons. Legal advice: 8 (800) 100-99-21 (free call within Russia). Therefore, the employee can file a claim in court.

A statement of claim must be filed with the court (in accordance with Article 392 of the Labor Code of the Russian Federation) within a month from the date of delivery of a copy of the dismissal order. The claim should be filed in a court of general jurisdiction (district court) at the place of the legal address of the enterprise or the place of residence of the employee.

The claim is drawn up as follows:

1. The “header” of the application indicates the name of the court and its address, the applicant’s full name, his passport details and residential address, contact details (telephone), the full name of the employer’s organization and legal address.
2. The estimated amount of the claim is indicated.
3. Description of the factual circumstances of the case.
4. Description of legal grounds and violated norms.
5. Requirements for the defendant (employer).
6. Date of filing the claim and signature of the applicant.
7. List of documents and other media related to the case attached to the application (for example, video and audio recordings).

You should not express your thoughts and conclusions in the application. Only facts and evidence will be relevant in it. 2 copies of the application are submitted to the court.

According to Art. 393 of the Labor Code of the Russian Federation, employees who apply to the court for labor disputes are exempt from paying fees and court costs.

The consideration of the case in court can take up to several months . Such cases rarely end in two meetings, and the usual period between meetings is 1 month.

The process of reinstatement after layoff and filing a claim for illegal dismissal is written here.

Exceptions to the rules

Who can't be fired due to staff reduction? The current legislation of the Russian Federation indicates that some categories of citizens may not be afraid of dismissal at the initiative of the employer.

There are special guarantees for pregnant women and people with children under 3 years of age. It is impossible to say goodbye to these employees due to layoffs.

If there is a reduction in position, the employer is obliged to offer the pregnant or maternity woman a replacement, taking into account her current situation. But it is not necessary to save your salary.

In addition, you cannot lay off a person (when reducing the number of employees) who:

• has a disabled child;
• is on maternity leave;
• has minor children under 3 years of age;
• single parent raising a child under 14 years of age.

The listed categories of citizens, as a rule, are dismissed only at their own request or in the event of complete liquidation of the enterprise. Otherwise, it will not be possible to legally get rid of the listed subordinates.

Which people are laid off from their jobs to the benefit of the employer?

In cases where there is a complete restructuring of staff in order to optimize positions, it is most profitable for the employer to consolidate several departments with similar functions into one . Thus, you can get rid of a number of management positions and optimally reduce the number of ordinary employees.

It's no secret that many companies are simply teeming with various small departments and services that have their own heads and their deputies. What does the boss do if the main management work of the department is assigned to the deputy, and he only has 2 or 3 employees subordinate to him?

When there is a reduction in the number of employees in departments, it would be wiser for a competent manager to cut unqualified personnel, workers without experience and skills, violators of discipline and those who do not show themselves in any way in the work of the company.

Other prohibitions

We found out who gets laid off first. The law prescribes that there is a certain circle of people who may not be afraid of this operation. And this does not take into account the previously listed citizens.

It is prohibited to lay off people who are unable to work (for example, on sick leave) or on vacation. In addition, the following may not worry about being fired due to redundancy:

• qualified employees;
• disabled people;
• people with 2 or more dependents;
• single parents;
• veterans;
• persons in whose family there are no longer able-bodied people with a regular income;
• people who received disability or injury/occupational diseases during the performance of work-related duties;
• on-the-job trainees;
• aimed at advanced training courses.

An ordinary average employee can indeed be fired due to a reduction in position or staff. The main thing is to follow a certain algorithm of actions.

In reality, layoffs include older people, as well as those who are personally disliked by the employer. Usually in these situations, management does everything to prove the subordinate’s inadequacy for the position.

Who can be laid off?

Although the initiative to reduce the number of personnel or staff belongs to the administration, the law obliges the employer to comply with a number of restrictions. Certain groups of employees are given preferential rights. It is better to start considering this issue from a different position, determining who should be fired first.

Note! The Labor Code in Article 179 directly states that the group of dismissed workers primarily includes workers with lower levels of qualifications and work productivity.

This approach is manifested in the dismissal of workers with little seniority and little experience. To eliminate unfounded decisions, the enterprise administration must consider the result of the qualification test, level of education and labor indicators for the past period as a whole.

Education is of great importance. All other things being equal, a university graduate has an advantage in remaining employed over an employee who graduated from college with a secondary education.

The decision to dismiss individual employees is made after an in-depth analysis of performance indicators and an assessment of each individual’s personal labor contribution. Those whose activities do not contribute to the successful operation of the organization are subject to layoffs. This process is usually called optimization.

Usually the first people fired in this case are:

• those who are hired last, provided that their activities do not produce a tangible positive result. Work performance is important because the presence of experience does not indicate the benefits brought;
• pensioners who continue to work. This category of citizens is additionally protected by the presence of a pension.

Important! All candidates for dismissal are reviewed collectively by a specially created commission. First of all, lists of those who have an advantage in maintaining a job are compiled.