Retrenchment of an employee - procedure and rules for retrenchment

Dismissal due to reduction

There are a number of required procedures, non-compliance with which equates dismissal to an illegal act. Therefore, knowledge of all norms and rules is necessary for both the employer and the employee of the enterprise.

What is a layoff and what should you do to avoid getting fired?

Dismissal and layoff of an employee are two completely different concepts. Bankruptcy, reorganization or re-profiling of a company prompts the manager to legally justify layoffs of employees. For example, there were 10 storekeepers working in the position, but it was cost-effective to keep 7 employees of this profile on staff. Thus, three are subject to dismissal due to reduction. After this, lists of persons recommended for reduction are compiled. After the list is approved by the Union, managers decide who should be fired and who they do not have the right to lay off.

Rights and guarantees of employees during layoffs

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

A number of rights and guarantees are provided for in Article 81. Here, the employer undertakes to offer an employee who is being laid off another vacant position at the enterprise (if there is one). If the company has branches or divisions, including in other cities, then the employee may be offered a job there.

An employee can take advantage of 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 statement, he can be fired earlier, but he is paid a benefit in the amount of average monthly earnings.

In addition, with this type of dismissal, persons have the right 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 person also include the employer’s obligation to notify the employment service authorities about planned events 3 months in advance. It is believed that this will allow laid-off persons to find work more quickly.

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Who does not have the right to be laid off at an enterprise?
It is impossible to deprive someone of a job based on the letter of their last name or personal hostility. There is a list of “non-redundant” personnel (Article 261 of the Labor Code):

• the worker is undergoing treatment in a medical facility;
• the employee is on maternity leave or due to temporary disability;
• a woman with a baby;
• single mother with minor children;
• members of the trade union;
• personnel conducting interviews.

When an enterprise experiences a complete layoff of workers, this group of people is transferred to other divisions. The only exception is a complete stop of production and closure of the company. Only under these conditions does the manager have the right to dismiss people from the above list. Otherwise, the court will automatically justify the claim of illegal layoffs. You can write this statement yourself or entrust the claim to a lawyer.

Who do not have the right to be laid off?

After the approval of the new staffing table, which contains a number of provisions providing for staff reductions, the question of cutting real jobs will arise. Thus, it will be considered which of the employees should be fired and which should be retained. A number of categories have protective guarantees that prohibit their dismissal.

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

1. Pregnant women.
2. Mothers with children under 3 years of age.
3. Single mothers with children under 14 years of age.
4. Mothers raising children with disabilities under the age of 18.
5. Persons raising children without a mother under 14 years of age.

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

You cannot fire an employee who is on temporary sick leave or on vacation.

Important! Dismissal of these categories of workers is possible only with the complete liquidation of the organization. If a position is eliminated, the person must be offered another vacant position. However, it does not necessarily have to be equivalent in terms of qualifications and remuneration.

Some other categories of workers also enjoy the right of advantage in the case of equal performance and qualifications (Article 179):

1. If this employee is the only employee in the family with earnings.
2. Disabled people who received injuries or occupational diseases at this enterprise.
3. Disabled WWII or disabled combatants in defense of the Fatherland.
4. Employees who undergo training (upgrade their qualifications) in the direction of the organization on the job.
5. Employees with two or more dependents.

Staff reductions can be avoided

If the boss chooses between several people, the decision is made in accordance with the Labor Code. They will keep a person at work with the highest productivity and skill. There are a number of perks that help save work. The following people can use them (Article 179 of the Labor Code):

• employees with occupational illness or injury;
• combatants who have become disabled;
• best employees of the year, authors of industrial designs or innovation proposals;
• students in higher education institutions for advanced training;
• workers who provide for the whole family alone;
• personnel with continuously long experience in the company;

What to do when downsizing?

If there is a forced resignation of these persons, then 30 days before the execution of the order, the employee can appeal the decision in court. To increase your chances of winning the case, it is recommended to seek legal advice regarding illegal layoffs.

Magic in the fight for work

The reason for dismissal may be unhealthy competition in the team

The reasons for dismissal can be different: staff reduction, angry boss, unhealthy competition among colleagues. If there is a real threat of losing your job, it is recommended to call on higher powers for help, pray, and perform various rituals with the help of which you can remain on the staff of the company. You can also use magic to protect yourself from possible dismissal in the future. For this purpose, rituals are carried out even when applying for a job or throughout a career.

Experts recommend making amulets for yourself, with the help of which you can resist rivals and save your job. Having received the support of the subtle worlds, you do not need to feel invulnerable, you cannot behave defiantly among your colleagues, since the negative energy directed at you will greatly weaken the protective powers of the amulet.

Being laid off at work - does the manager have the right?

The manager does not have the right to suddenly and groundlessly lay off people. This is a labor-intensive process that requires strict adherence to all rules. The job reduction procedure looks like this:

• Management, relying on weighty arguments, starts an event in the company. Falling sales, lack of funds, etc.
• Signing an order to reduce a position.
• Creation of a new personnel document without persons who have been laid off.
• 60 days before the order is executed, all employees included in the list must be notified in writing. Proof of this is the worker’s signature on the receipt.
• During this time, the employer is obliged to inform the employee about vacant positions. The employee's decision to either choose an open position or accept termination. The law does not establish how long an employee can think about an offer.
• The employer must notify the unions and the employment center. The trade union must be aware even if the employee is not part of a public organization.
• Management is not obliged to explain its decision to either the union or other employees.
• After 2 months, an order was given to dismiss those on the list.
• Settle accounts with all employees in accordance with the law, issuing compensation for layoffs.
• Submit a report to the employment service within 10 days.

Failure to comply with at least one point of the rules is grounds for a justified appeal to the court. Consulting a lawyer will help you prove illegal layoffs.

How to proceed through the court?

According to Article 391 of the Labor Code of the Russian Federation, on the basis of a statement from an employee, prosecutor or representatives of a trade union organization, the court must consider any violations, regardless of the reason for the appeal.

Procedure for going to court:

1. Drawing up a statement of claim. The Code establishes a period for protecting the employee’s rights equal to one month from the date of dismissal; it will not be possible to file a claim later if there are no compelling reasons for the court.
2. Sending a statement of claim by mail or submitting it to the court in person.
3. Waiting to agree on a court date.
4. On the appointed day, appear in court, or notify the court about considering the application in your absence.
5. If a positive decision is made, the administration of the enterprise is obliged to reinstate the employee starting from the day following the date of the decision.

Important: the employee must also, by a court decision, receive lost earnings for the period from the date of dismissal to the official return to work.

Where is the claim filed?

The completed claim is sent to the district court at the place of work or at the place where the employer carries out activities, depending on which of them is stipulated in the employment contract. In some cases, the law allows you to send a claim to the employee’s place of residence.

How to make an application?

The statement of claim must include:

1. A header with the details of the parties: the court, the applicant and the defendant.
2. Date of hiring, position, organization, end of work.
3. Was there a notice of layoff and when?
4. Were any vacant positions offered, and what kind?
5. A list of conditions and circumstances that make this reduction illegal in relation to the applicant.
6. Application for reinstatement to a reduced position in the specified organization.
7. An order to oblige the defendant to pay moral damages/wages compensation for time without work/other expenses.

The statement of claim must include:

• A copy of the work book.
• A copy of the layoff notice.
• A copy of the list of positions offered in connection with the reduction.
• A copy of the dismissal order.
• A copy of the statement of claim for reinstatement.
• Other documents that can prove the illegality of the employer’s actions (for example, information about a disabled child, a large family, or pregnancy).

The statement of claim must be made either in printed or handwritten (legible) form.

Reference. The advantages of resolving issues through the court include the possibility of demanding compensation for moral damage and changing the wording of dismissal in the work book; state duty is not paid.

How long does it take to process a case and what is the state fee?

Filing a claim for reinstatement of an employee is not subject to state duty. The time during which the court will consider the case directly depends on the individuality of the situation. If each party has significant evidence in their defense, the case may drag on for several hearings. Some cases can last up to a year.

How long after a court decision will a fired person be returned to the workforce?

The employee must be reinstated to his previous position immediately, that is, on the day the decision is made, an order must be issued to cancel the dismissal and reinstatement with subsequent payments signed by the employee. If there is a delay in the execution of a court decision, a fine of 10,000 to 50,000 rubles may be imposed.

We talked about what an employee should do after dismissal due to layoffs, as well as in what cases he can go to court to be reinstated in his position in a separate article.

Being laid off at work: Compensation for layoffs

On the day of resignation, the company undertakes to pay money in accordance with labor laws. The calculation is performed on the same day and contains the following components:

• salary for working days in the month of dismissal;
• compensation for vacation that was not used;
• cash benefit equal to one month's salary.

If an employee does not find a job within 60 days, then the former manager must pay for this time with 2 monthly salaries as compensation from the company, taking into account monetary benefits. If the employee does not find a job even after 3 months, he can contact the management again and receive the last such payment. For workers in the Far North, paid job search has been extended to 6 months.

Compensation for layoffs consists of cash benefits and payment for unused employee benefits that never materialize. The calculation period is considered to be one year of work, excluding the month of dismissal. You can calculate the compensation using the following formula: divide the salary for the estimated period by the number of working days this year and multiply by the number of days in the month after dismissal. The employee can agree with the order and sign the document himself.

What payments are due upon agreeing to a reduction?

An employee should expect additional compensation upon layoff. It is issued without taking into account the required payments. The sooner the employee signs the document, the more working days remain until the layoff deadline, which means the additional payment will be higher.

If the parties cannot find a common opinion on monetary payments, then the boss must pay the undisputed part of the money on the day of dismissal. At the same time, they return the work book, which should contain the appropriate note about dismissal due to layoffs at work.

What to do and how to behave if they want to fire you?

The first thing to do is understand the reasons for the dismissal. How to behave in the future depends on this. Next, it is necessary to clarify whether the employee is included in the list of those employees who cannot be laid off or whether they have a preferential right to remain. The first category includes persons on sick leave, on leave (including to care for children), as well as members of a trade union, company representatives, and pregnant women. If they want to fire these persons due to a reduction in work, then such actions are illegal and a complaint should be filed.

The second category includes people who:

• Two or more dependents or they are the only breadwinners in the family;
• Disability has been registered;
• Injured by an employer;
• Qualifications are increased as assigned by the management of the enterprise and at its expense.

Tips to avoid problems

If an employer intends to act in bad faith, employees should expect trouble. You can avoid problems if you follow some advice. First, before dismissal you will have to strictly adhere to the daily routine of the enterprise and other conditions specified in the contract.

Secondly, it is necessary to obtain a copy of the order to reduce staff as quickly as possible and demand notification of the impending dismissal. After the order was issued and the employee’s name was entered into the lists, he signed that he was subject to layoffs, the main thing was not to give a reason to dismiss him under another article.

Third, it is recommended to consult a lawyer regarding your rights. The specialist will describe the most effective algorithms for action in the event of unlawful actions by the employer. This step will help prevent wrongful dismissal.

Can they be laid off without registration?

There are two options here - the employee was not initially registered or he was officially hired, but they want to terminate his employment contract and lay him off without registration. In the first case, the employee is not officially protected; he can simply not be allowed into the enterprise and not be paid for the work done. Proving employment is difficult.

In the second case, as indicated above, the management of the enterprise resorts to tricks in order to save money. For example, instead of filing a dismissal due to layoffs at work, it is proposed to write a statement and stage the process as if the termination of the employment contract occurs by agreement of the parties. In this case, the actions of the company's management are illegal.

We decide whether it is more profitable by agreement of the parties

To understand how much more profitable or not it is to quit by agreement of the parties, you need to consider the following:

1. The employee must be paid a salary for time worked and unused vacation.
2. He is entitled to severance pay if provided for in the employment agreement or if there is a corresponding clause in the collective agreement.

The paid time to search for a job is reduced from at least 5 to 3 months, since the dismissal occurs immediately, and not after 2 (and in the case of a mass dismissal, 3) months. If nothing is specified in the contract about severance pay, the employee will not receive it. The decision is not in favor of the parties' agreement.

Rights of an employee illegally laid off at work

If an employee's rights were violated during layoffs, he has the right to appeal in court. Facts that the plaintiff can present as a violation of layoffs and employee rights (261 and 179 articles of the Labor Code):

• groundless job reduction;
• the plaintiff was notified orally or electronically rather than in writing;
• the applicant was not recommended any vacancies of his qualifications, although there were such ones at the head office;
• evidence that the reduction was not made by priority;
• The 2-month period begins with the employee’s written consent to dismissal, and not with the writing of a document.
• the employment center did not know about the event.

Effective arguments of the defendant:

• the employer is not obliged to explain decisions made to other employees.
• the statement of violation was written after 30 days from the date of dismissal due to redundancy;
• the order was delivered by Russian Post with a notification where the postman is required to obtain the recipient’s signature;
• the new position was not recommended due to the fact that it was only temporarily available;
• the right to select an employee for a vacant position remains with the company.

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

It should be noted that reducing the salary rate of an employee due to the difficult financial situation of the employer is unlawful. Therefore, considering it as one of the alternatives to downsizing is not entirely correct. Moreover, it is legally prohibited to reduce workers’ wages 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 this is possible:

1. If there are changes in equipment and/or production technology.
2. In case of improvement of workplaces (based on certification).
3. During structural reorganization.
4. 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 required to perform the job function. However, the job function itself cannot be changed.

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 reduced by 30%. Or if, as a result of a structural reorganization, the employee no longer needs to perform one of the actions he performs, for example, when packing goods, there is no need to carry wrapping paper, which is 25% of the amount of work performed.

In this case, such a reduction in the tariff salary must be preceded by a number of actions on the part of the enterprise:

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

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

1. According to clause 2, part 1, art. 81 for staff reduction. Here he will be paid all due compensation.
2. According to clause 7.ch. 1 tbsp. 77 as someone who refused 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 began work after the expiration of 2 months, but the additional agreement was not signed, then this is interpreted as actual consent to a reduction in the tariff rate.

Being laid off at work illegally

If an employee believes that he was illegally laid off, then it would be reasonable to prove a violation of the preemptive right. To do this, the employee provides the court with a diploma of higher education, awards, certificates of merit in production, etc. Arguing that other employees work no better than him, the plaintiff cancels the layoff, and the employee’s rights are automatically restored. At the same time, he will receive money for forced absence and moral damage.

Attention! Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge Ask a question to a lawyer

What to do to avoid being laid off at work

To avoid mistakes and litigation, the employer must take the following steps:

• How to protect yourself from layoffs

As was said, every laid-off employee must receive payments guaranteed by the state. The list of benefits is given in Chapter 27 of the Labor Code of the Russian Federation. On the last working day, the citizen is given compensation for unused vacation, financial assistance and other payments provided for by the terms of the contract. Wages are calculated based on the number of days worked.

Basic concepts (read more...)

Calculation procedure

To pay the money, you will initially need to make benefit calculations. In this case, the formula applies:

P – amount of severance pay;

H – quantitative expression of days that occurs in the month following the day of termination of the employment relationship;

SZ is the average value of the earnings of a dismissed person.

When a citizen has worked the standard time in full during the settlement period, it is established that the average payment cannot be less than 1 minimum wage. This minimum is intended to determine wages.

In a situation where a citizen’s working time is subject to recording in daily terms, the average earnings are determined using a different formula. It is presented like this:

SZ – average value of earnings;

Z – the amount of a citizen’s salary for the time worked in the billing period;

This is important to know: Conditions for the appointment and payment of temporary disability benefits

BH is a quantitative expression of days actually worked.

It is worth pointing out that the calculation includes bonuses and remuneration.