According to the Labor Code of the Russian Federation, the basis for dismissal of an employee initiated by the employer may be a reduction in staff or number of employees.
Reduction of staff means that a certain position is abolished and all employees occupying it will be fired. A reduction in the number of employees means that the position remains, but the number of employees occupying it decreases. In both the first and second cases, the reduction process must take place according to the established procedure, without violating the rights of the employee.
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Reduction procedure
If an employee is to terminate his employment relationship with his company, the dismissal procedure depends significantly on the reason for which this occurs. Sometimes a situation arises when there is a reduction in staff or numbers. There is a difference between these two types of dismissal. In the process of business development, a situation is possible when at one of the stages the staffing table changes. Some positions may disappear completely, while in other cases there will be a reduction in the number of staff positions.
Regardless of the reason for such changes, some employees lose the opportunity to work in their previous position. The Labor Code protects the rights of workers who find themselves in such a situation. The personnel changes being considered must have valid reasons, otherwise dismissed employees may apply to the court to be reinstated in their previous position.
The reduction procedure is regulated in detail by law. It happens in the following order.
Accounting for employee productivity during layoffs
If you do not compare labor productivity, the court may consider such actions a violation of the requirements of Part 1 of Art. 179 of the Labor Code of the Russian Federation, which means non-compliance with the dismissal procedure, and, as a result, will reinstate the employee in his position.
In order to identify and, if necessary, confirm in court the difference in performance among different employees, you will need documents indicating that the employee performed work of a higher quality, important responsible tasks, or a larger volume of work compared to other employees. The last indicator is easy to prove by agreement and order on assignment to the employee in accordance with Art. 60.2 of the Labor Code of the Russian Federation for additional work.
The most effective method of comparison is the development of a special form or form. You can enter data on the number of operations performed by compared employees over a certain period of time. For example, for sales managers, productivity is determined taking into account the number of meetings, negotiations, presentations, as well as concluded contracts.
Decision-making
For one reason or another, the company's management decides to change the staffing table and carry out staff reductions. It must be in the form of a document. In particular, the date on which this procedure will be carried out must be determined.
It is necessary to distinguish between ordinary and mass reduction, which differ in their scale. The criteria according to which they differ are specified in industry or regional regulations.
The order appoints responsible persons, as well as the reasons for the reduction.
The order is brought to the attention of employees. This must be done against signature.
A staffing table is being created that will be in effect in the future. In this case, the date from which it will be valid must be indicated.
The manager is obliged to inform the trade union organization operating at the enterprise in writing about upcoming layoffs. This must be done two months before the date of their holding.
pros
There are various pros and cons for the employee and the employer. Each side has its own number of advantages. Benefits for the employee:
- advance notification of job loss. This happens 2 or 3 months before the dismissal. Exceptions include fixed-term contracts and seasonal work;
- severance pay and further payments from the labor exchange. With the standard, this is 2-3 average monthly earnings. Under difficult conditions, for example, work in the Far North, the duration of payments increases to six months. Also, payments may correspond to a concluded collective agreement or an additional agreement that is attached to the contract or agreement;
- if there are benefits, they cannot be laid off if there is a pre-emptive right, that is, the option of remaining at work. The exception is liquidation when all employees are laid off;
- If there are available vacancies, the employer is obliged to offer them to the employee if they have the skills and qualifications that correspond to the position;
- additional financial support. For example, if an employee falls ill within a month after dismissal, then part of the sick leave during the first month of being on the stock exchange will be paid by the former employer;
- in case of any violations of labor legislation during layoffs, the employee can return to his old position by court decision.
Important! You can return to your previous place of work only if you have certain evidence. If the employer has all the correctly executed documents on hand, then it will not be possible to appeal.
The employer has its own list of benefits, which differ in their characteristics from the advantages for the employee. Pros:
- legal grounds for dismissal;
- reduction of low-performing employees if they are not included in preferential categories;
- the ability to transfer employees to other positions if they wish;
- optimization of work by reducing interchangeable positions.
It is also necessary to remember that it is possible to terminate the contract by agreement of the parties, but the employee there has the right to demand conditions, including financial ones, that are better than under the usual layoff procedure. Another advantage for the employer is early dismissal, which allows you to quickly remove a position from the staffing table.
Employment service notification
In this case, written notification of the employment service about the planned event is required. It must be done no later than two months before the start of the procedure. This period is determined for legal entities. If the reduction is carried out by an individual entrepreneur, then in this case the period is two weeks.
This document should list the employees who are about to be dismissed, as well as information about them. The following information must be provided for each employee:
- Full Name.
- Job title.
- Qualification requirements.
- Salary data.
In case of mass layoffs for legal entities, the notice period for layoffs increases to three months.
Who can't be laid off?
When carrying out a reduction, the procedure at a certain stage requires making a choice about which of the employees will lose their jobs. On the one hand, the enterprise must develop and adapt to new business conditions, therefore changes in the staffing table are very likely and in some situations justified. On the other hand, the situation when an employee loses his job is often not only undesirable, but also tragic.
Therefore, the choice of those who will remain and those who will lose their jobs must be made in accordance with established rules and be justified.
There are restrictions that protect certain categories of employees. Regardless of the business situation or plans for the development of the enterprise, it is impossible to dismiss some persons under Article 81 of the Labor Code of the Russian Federation (dismissal due to reduction).
Restrictions apply to the following employees:
- If an employee is sick and is not present at work at the time of dismissal, then he issues a certificate of incapacity for work for the specified time.
- Those who are on vacation at the time in question.
- Persons who are minors are not employed. However, the prohibition only applies if there is no consent from the labor inspectorate.
- Mothers raising young children. This prohibition applies in situations where at least one of them is 3 years old or younger.
- When a child under 14 years of age does not have a mother, the person raising him cannot be dismissed on the grounds in question.
- Anyone who has a disabled child under the age of 18 who is raised without a mother.
- Single mothers with children under 14 years old.
- Pregnant women.
- A mother raising a disabled person under 18 years of age.
- If the woman is currently on maternity leave.
When making cuts, it is impossible to fire these people. This means that they must be provided with similar work, or, if this is not possible, refuse to reduce staffing positions related to them.
Who should be left to work given equal labor productivity:
1. Workers who constantly support two or more disabled family members 2. The only breadwinners in the family 3. Workers who received a work injury or occupational disease in the company 4. Disabled combatants in defense of the Fatherland and disabled veterans of the Great Patriotic War 5. Workers who improve their qualifications in the field employer without interruption from work. Doing this is impractical, otherwise a comparison of the professional qualities of employees will take place on the basis of a fact that, by virtue of Art. 194 of the Labor Code of the Russian Federation no longer has legal significance. If the penalty is repaid, then it is better to focus your attention on analyzing other indicators of the employee’s current work activity.
A situation is possible when the labor productivity and qualifications of employees whose positions are subject to reduction are equal. In this case, the employer should take into account additional comparison criteria. The list of persons who need to be given preference is given in Part 2 of Art. 179 Labor Code of the Russian Federation. These, in particular, include workers who are the only ones in the entire family who have an income.
The special status of the employee is confirmed by various documents. For example, the receipt of an occupational injury is certified by an industrial accident report, and the establishment of disability is certified by a certificate and an individual rehabilitation program. Participation in hostilities - documents from the military registration and enlistment office. The presence of dependent family members is confirmed by the child’s birth certificate, marriage certificate, certificate from the spouse’s place of work indicating that she is on parental leave, or a work record book with a record of dismissal from her previous place of work.
The employer should also request a copy of the spouse’s passport with a note about the place of registration. It can become one (but not the only) piece of evidence confirming cohabitation.
Reduction Commission
Although the criteria for determining those who have a preferential right to remain working at the enterprise are quite clear, there is not always confidence in the objectivity of the conclusions made by the director alone. The decision made by the special commission that deals with this issue seems more justified.
If the employee is a member of a trade union, taking into account the opinion of the elected body is mandatory in accordance with Article 82 of the Labor Code of the Russian Federation.
Such a commission considers preferential rights when leaving a job. Its findings are recorded in a protocol, which is taken into account when the manager makes the final decision.
Qualification assessment
Qualification means:
- level of professional knowledge;
- presence of experience;
- level of knowledge and skills.
In order to assess the level of qualifications of an employee in a particular case, this issue is usually considered by the certification commission. The procedure is determined by the local regulations of the enterprise.
In some cases, qualifications can be assessed based on documents that confirm it or the conclusions of the certification commission received before.
Who has an advantage given the same performance and qualifications?
If employees have equal qualifications, then additional methods for assessing them can be used. One of the possible options is to test your existing knowledge and skills. However, the use of such or similar measures is not mandatory for making a decision on retention or dismissal.
Advantages may go to those employees who received higher or more incentives.
If the professional qualities of the candidates are equal, then the observance of discipline by these persons may be taken into account. For example, work violations received by candidates may be considered. If one of them has much more of them than the other, then he is less likely to stay.
Selecting more valuable employees
According to current legislation, the main advantages during layoffs belong to the most competent specialists with higher qualifications. This concept is explained in Article 195.1 of the Labor Code. An employee's qualifications are determined by his level:
The selection of more qualified workers is influenced not only by the assigned ranks and degrees, but also by other parameters characterizing the level of their professionalism:
- academic titles;
- number of publications;
- length of service in the position that was laid off;
- availability of additional education;
- no disciplinary action
- availability of incentives for labor success, etc.
The Labor Code does not explain what labor productivity is. Usually it means the efficiency, the “efficiency” of an employee in his position. It is not difficult to determine which employee has the higher productivity if productivity is measured in quantitative terms. For example, who made more sales in the previous month, or who turns out more parts during a work shift, avoiding defects. In other cases, it may be determined, for example, by student performance (for teachers), positive treatment results (for doctors) and other characteristics depending on the specifics of the work.
This is important to know: Can they be fired for failure to fulfill the plan: conditions, grounds, practice
Features of dismissal due to reduction of pensioners
According to labor laws, working pensioners have the same rights and responsibilities as other employees. The redundancy dismissal procedure does not have any additional features.
Of course, the state provides a variety of support to elderly people who are on well-deserved retirement. However, it is not related to the implementation of labor legislation.
Payments to those laid off due to staff reduction
Upon dismissal, they are paid wages for the last period of work and paid for all unused compulsory vacations. If the employment relationship is terminated, the employee is entitled to severance pay in the amount of one month's salary. If he is registered at the labor exchange, then in the future he has the right to receive the same amount again at the expense of the enterprise. If certain conditions are met, this can be done a third time.
Payment of the required amounts occurs on the employee’s last working day. If the date falls on a time when the employee was not present, the payment must be made no later than the next day after the request for payment is presented.
On the day of dismissal, a completed work book is issued, which indicates that the dismissal was made due to a reduction in staff or numbers.
Preference holders
One of the articles of the Labor Code is devoted to the preferential retention of employees on staff - Art. 179. Employees who have redundancy benefits are listed here. The code includes:
- family workers: with at least two dependents;
- if there are no other persons in their families with independent income;
The Labor Code says that this list of “beneficiaries” can be expanded at the initiative of the employer. To do this, it is enough to specify in the collective agreement other categories of employees, providing them with benefits in case of staff reduction. For example, some companies establish preferences for employees of pre-retirement age or for “old-timers” of the company who have worked in it for a long time - more than 20-25 years.
