About rights and payments for pensioners in case of staff reduction

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Pensioners are people who receive cash benefits from the state. According to statistics, at least 40% of them continue to work for various reasons.

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• Preferential categories

This is explained by a lack of funds and fear of loneliness. Working on an equal basis with others, this category of citizens has all the rights of a full-time employee.

And they can be reduced on a general basis. Age is not taken into account in such cases, and the same laws apply to them as to other employees. This is covered in Chapter 27 of the Labor Code of the Russian Federation.

Can a pensioner be fired due to redundancy?

Information

Until 1992, a labor code was in force, which allowed the enterprise administration to dismiss an employee after his age approached the retirement limit. Based on the new norms regulating the relationship between the employer and employees, the citizen retains the right to work.

Pensioners, like other employees, may be laid off. The dismissal procedure takes place on a general basis. All actions of the personnel department comply with the provisions of legal norms.

Measures to reduce the number of staff units are most often triggered by the following events:

• modernization of production;
• change in the scope of activity;
• job reductions in order to optimize labor resources;
• reduction in the volume of products produced at the enterprise.

Important

Pensioners who have dependent minor children are not subject to dismissal.

The ban also applies to:

• guardians;
• disabled people of WWII and combat.

Which pensioners should not be laid off?

Some categories of citizens are considered socially protected, and some have significant services to the state. Therefore, they cannot be fired. Let's list them:

• veterans and disabled people of the Great Patriotic War;
• veterans and disabled combat veterans;
• citizens who were injured as a result of performing duties at work, but are capable of performing work duties;
• disabled people;
• citizens with dependent dependents;
• parents with many children.

Some citizens cannot be laid off

In the collective agreement, companies can also provide their own list of employees who cannot simply be fired. They are kept on staff even when the number of employees has been reduced to the maximum.

Dismissal procedure

Due to the fact that a working pensioner is an ordinary staff member, the dismissal procedure is carried out in accordance with the general requirements of the law.

The actions of the administration represent a certain algorithm, following which many mistakes can be avoided.

1. The director of the company, together with the heads of structural divisions, holds a meeting at which an official decision is made to change the staffing table.
2. Based on the decision made, the commission members issue an order. The text indicates the need to reduce certain staffing positions, the names of positions, the names of employees and the date of execution of the order.
   Information

   The list of those affected by reduction is compiled by the heads of departments, but is approved by all members of the commission, including the director.

3. According to the legal framework, employees included in the list are given a written notice of the administration’s intentions 2 months before the date of execution of the order.
4. If there are vacancies at the enterprise that correspond to the qualifications of the employee who was laid off, he is offered a new position. In this regard, retirees have priority, because their experience and professional level are of great value to the company.
   Attention

   One of the important conditions for the possibility of transfer is good health.

5. Simultaneously with notifying the employee of the upcoming layoff, the manager notifies the trade union organization of the upcoming changes, as well as the employment service.
6. All employees included in the layoff list are given a written notice against their signature.
7. In order for qualified employees, such as retirees, to continue to use their accumulated experience, the administration offers an alternative vacancy. The pensioner confirms his disagreement to renew the employment agreement with his signature in the act, which is drawn up in the event of refusal to accept the administration’s offer.
   Attention

   He retains the right to resign early while maintaining benefits for the remaining period.

8. Two months after receiving the written notice, a dismissal order is issued. The wording indicates the reason - reduction.
9. The dismissed employee is given documents (including a work book) and payment funds. The process of transferring papers and funds is recorded in personnel journals and accounting statements.

Privileges and guarantees

When carrying out the procedure for downsizing or liquidating a company, persons receiving state subsidies are entitled to privileges. The employer must provide pensioners with the following guarantees:

• do not discriminate against individuals based on age, provide equal rights to work for older citizens compared to younger employees;
• take into account the qualifications, experience, knowledge and skills, high labor productivity of a pensioner when determining the list of employees subject to personnel reduction;
• provide additional unpaid leave out of turn for up to 2 weeks to a person receiving old-age benefits, upon his request;
• pay all subsidies established by the state when the number of workers in the company is reduced;
• do not force a pensioner to work for the required 2 weeks if the citizen decides to resign of his own free will.

Preemptive right to remain on staff of the enterprise

According to the provisions of the Labor Code of the Russian Federation, an employee receives an advantage when remaining in his position during the procedure for optimizing production at the enterprise, if he is highly qualified and performs duties in accordance with the provisions of the employment agreement. If a person of retirement age is actively working in production and his work is highly productive, then the company management must take these factors into account when compiling a list of employees to be laid off.

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Which pensioners are prohibited by law from being laid off?

People belonging to socially unprotected categories of citizens who have served the Russian Federation and the enterprise have the right to remain in their previous position while minimizing the size of the company for objective reasons. These include the following Russians receiving a pension:

• those who took part in battles on the battlefields of the Great Patriotic War (WWII);
• those who received injuries in the Second World War that led to disability;
• having disabilities due to participation in other battles in hot spots;
• injured during work, but able to perform job functions in accordance with the provisions of the employment agreement;
• providing for minor dependents;
• falling under the definition of a privileged group that is not subject to reduction, in accordance with the provisions of the collective agreement;
• who are guardians of minor children, provided that they are the only employed family members.

Payments and benefits

The date indicated in the notice of reduction is the last working day. It is then that the employee is given documents and payment funds for the period worked. The law also provides for the payment of benefits in the amount of average monthly earnings, and this amount is retained by the pensioner for two months.

The benefit is, in essence, material support for the fired person during the period of searching for a new job. If this appears in the first month after dismissal, then the employer has the right to refuse the next tranche.

The total amount issued includes:

• wages;
• severance pay;
• compensation for unclaimed leave.

Based on the internal regulations of the organization, a reduced employee may be awarded an additional amount for length of service or other achievements.

Attention

Payments to a pensioner with whom the employment agreement is terminated early are carried out in accordance with legal acts, namely Art. 178, 180 Labor Code of the Russian Federation.

Within 2 weeks, a redundant employee can register with the employment service, then it becomes possible to receive severance pay for the third month.

Benefit for the following months after the retiree’s dismissal

What kind of payments are provided to laid-off pensioners if they worked in the Far North and similar areas? The rules here are similar to those that apply in other places:

• salary for the time period worked;
• compensation for vacation balances;
• severance pay.

Note that the time it takes to maintain the average salary per month (for the duration of employment) after terminating an employment contract is slightly different.

Article 318 of the Labor Code of the Russian Federation

As for people working in the Far North or similar areas, they are entitled to an average salary for a period of up to three months from the end of the employment contract, taking into account severance pay (Article 318 of the Labor Code).

In some situations, the salary may be left for this category of citizens for another three months - if this was the decision of the employment service or a number of the listed criteria are met:

• the citizen visited the employment service within a month after leaving work;
• this citizen was not employed by the employment service.

These rules of the Labor Code of Russia also affect citizens of retirement age who continue to fulfill their labor duties (letter of Rostrud dated February 11, 10, number No. 594-TZ).

Note! Compliance with the right to retain average monthly earnings for the next three months from the date of dismissal (up to six months) depends on the specific situation. Special cases must be established by the employment service. Even if the law does not provide a list of such “special situations”, this cannot be the reason for the decision on the part of the employment service to leave employees without average monthly earnings, provided only that the employees and the employment service itself follow the rules for providing public services for assistance in choosing a suitable place work (decision of the Kuril District Court of the Sakhalin Region dated February 27, 2018 in case number 2-19/2018).

Sometimes severance pay is paid for a longer period

Working off

According to the regulations described in labor legislation, the administration informs the employee in writing about the upcoming reduction of his position. For two months from the date of delivery of the notice, the previous functional duties are to be performed.

But pensioners can exercise the right to early dismissal by drawing up an application with a corresponding request. If the employer agrees to terminate the employment agreement, the employee retains the right to receive severance pay and other payments provided for by legal acts, and is also paid a sum of money proportional to the period remaining from two months.

Attention

Pensioners have a pre-emptive right to terminate their employment relationship with their employer early, referring to Art. 81, clause 2, part 1 of the Labor Code.

If early dismissal is denied, the pensioner must work for the required period (2 months). An alternative option is voluntary resignation. The employee submits an application indicating the reason - retirement. The Labor Code allows you to resign in this case without working on the day specified in the application. But at the same time, a pensioner should not count on the severance pay due to the staff being reduced.

Payment for performing labor duties

Upon layoff of an employee, management must repay the debt to a citizen of retirement age for payment for work duties. The total amount includes salary, bonus, raises, bonuses and similar incentives. If a pensioner was fired in the middle of the reporting month, he is given money for the period that he actually worked. If an employee’s earnings are calculated based on output, then the monetary amount is calculated based on actual indicators (for example, the number of parts created before the reduction).

When providing a salary to a dismissed pensioner, management must credit and pay personal income tax and insurance contributions according to the rules established by law.

Note ! _ Let's look at an example. On November 14, 17, a citizen of retirement age was dismissed from his position as a storekeeper at Start LLC due to job reduction. The salary of this citizen is 18 thousand 712 rubles. Every month he receives a salary increase in the amount of 1 thousand 60 rubles.

On the date of dismissal, the citizen was accrued wages for the time actually worked - from November 1 to November 14, 2017. Let's calculate the amount:

(18 thousand 712 rubles + 1 thousand 60 rubles) / 22 working days * 10 working days = 8 thousand 987 rubles, 27 kopecks.

When accounting for withheld personal income tax, a citizen is provided with payments based on the following calculations:

8 thousand 987 rubles, 27 kopecks – 8 thousand 987 rubles, 27 kopecks * 13% = 7 thousand 818 rubles 93 kopecks.

When a pensioner retires, he must be paid in full.

Entry in the work book

The text of the entry in the work book must match the contents of the dismissal order. It is entered by the personnel officer after the introductory signature of the pensioner under the order of the manager.

On the last working day, an entry is made in the work book, including the following data.

• Record number;
• Reason for dismissal (dismissal due to layoff);
• Link to the article of the code (Article 81, clause 2 of the Labor Code of the Russian Federation);
• Date of termination of the employment agreement;
• Signature of the head of the enterprise;
• Seal of the organization.

Attention

The order and entry entered into the work book must necessarily contain references to the article of the Labor Code of the Russian Federation.

Actions of a pensioner in case of non-receipt of compensation

Unfortunately, many retirees not only have to unexpectedly find themselves in a stressful situation due to a decrease in the number of employees, but also have to deal with unscrupulous employers who refuse to pay money.

In such cases, you should not be upset, since the law is completely on the side of workers deprived of payments. To receive the money due upon dismissal, we first recommend reading Article 236 of the Labor Code. Then contact the judicial authorities and clearly state all your claims.

After this, after some time, the pensioner will not only receive all the money intended for him by law upon layoff, but also some additional amount in the form of interest assigned by the court as punishment for the employer for the delay.

Is it possible to appeal dismissal?

The list of redundant staff is compiled not on the basis of age category, but on professional suitability, taking into account changes planned in production. Therefore, people of different ages can get into it. The pensioner has the right to challenge management’s decision in court, citing the following reasons:

• belonging to a preferential category of persons (presence of guardianship, status of a combat disabled person, etc.);
• inability to exercise the priority right to stay at the enterprise or take a vacant position;
• if the notification deadlines were violated during the staff reduction procedure;
• if an incorrect entry is made in the work book;
• upon refusal to pay severance pay.

The reason for proceedings in state authorities is often the requirements of Art. 179 of the Labor Code of the Russian Federation, which clearly states that employees of retirement age should enjoy the preferential right to transfer to another division of the enterprise. A high qualification level and experience are always a priority for any organization. However, the proposed vacancy must be commensurate with the qualifications of the unit being reduced.

Important

Dismissal is considered illegal when the staffing table remains unchanged. This decision by management contradicts the regulations for processing documents related to reducing the number of staff.

Regulation by law

Previously, in legal terms, rules were adopted that allowed the dismissal of a citizen upon reaching retirement age. However, since 1992, entry into venerable years cannot be used as a reason for dismissal of a citizen due to reduction (although this does not apply to some professional categories). A certain part of the bosses, when dismissing a number of employees, adheres to the fact that citizens of retirement age are relatively protected in legal terms when compared with other people (since they have a slightly different type of income). However, this contradicts legislative norms and can be understood as a discrepancy with the principle of equal rights and opportunities for employees (part one of the second article of the Labor Code) and an infringement of certain categories of citizens (third article of the Labor Code).

Dismissing a citizen of retirement age due to staff reduction (as well as other groups of employees) is permissible only when it is not possible to allow him to continue to perform his job duties. In other words, the company cannot provide a person with a suitable position that matches his professional skills, salary level, and health status.

Note ! _ Another option is the pensioner’s independent refusal to continue working. Before dismissing a citizen of retirement age due to reduction, he must be informed of all possible outcomes.

Article 3 of the Labor Code of the Russian Federation

Based on the first part of Article 179 of the Labor Code of the Russian Federation, pensioners may have some privileges during layoffs, since they usually have greater qualifications compared to other employees.

The protection of employees of retirement age of the social plan is specified in the Labor Code of the Russian Federation. If an employer is going to ask a pensioner to vacate his job, he must study Article 81 “Termination of an employment contract at the initiative of the employer,” which discusses all permissible conditions:

• destruction of the organization;
• reduction in the number of employees due to economic problems;
• low qualification of the employee;
• new management of the company;
• presence of disciplinary sanctions;
• absenteeism;
• showing up at work while drunk;
• committing legal violations at work;
• disclosure of corporate data considered secret.

As you can see, retirement age is not included in the list of reasons, so using this reason to dismiss an employee is unacceptable and is a violation of the law.

Excerpt from Article 81 of the Labor Code of the Russian Federation

Note ! _ When the number of employees is reduced for objective reasons, then general rules apply to retirees, on the basis of which the reorganization is carried out.

Most of the important information is found in Chapter 27 of the Labor Code of our country. The title is as follows: “Guarantees and compensation for employees who are faced with termination of the contract.” It contains several small articles - 178, 179, 180, 181. Having studied the presented text, it is impossible to note any striking differences between the dismissal of a pensioner and other categories of citizens. Thus, the rights of citizens of retirement age are similar to the rights of employees of other ages.

Article 178 talks about severance pay paid after leaving the workplace. Based on the Labor Code, it amounts to one salary and is issued within a couple of months. This period is counted from the moment you leave work. Note that if an employee contacted the Employment Center less than two weeks after leaving his job and they could not help him find a new job, then he may receive severance pay for a month more.

Article 178 of the Labor Code of the Russian Federation

Touching upon practice, we can say that court verdicts vary. The reason is that the Labor Code of the specified chapter does not write whether it is necessary to equate an unemployed person after dismissal due to reduction to a person who is unemployed but receiving pension payments.

Note ! _ Logically, we can conclude that these categories of citizens have nothing in common. However, there are situations when applicants sought to provide them with severance pay from their superiors for three months precisely on the basis of omissions in the Code. True, such cases are rare. This problem is still very acute, causing a lot of controversy.

A pensioner cannot be unemployed

Therefore, based on all the information above, we can state the fact that people who have reached retirement age in our country are fired in exactly the same manner and taking into account the same rules as when dismissing workers of other age categories.

In turn, the employment service considered it necessary to explain to citizens that it does not have any reasons for refusing help to pensioners in finding a job, but the payment of benefits to this category of applicants will not be made. That is, a pensioner can register with the employment service in search of work, but at the same time cannot be recognized as unemployed and receive appropriate assistance from the state.

What to do if they don't pay?

When laying off a pensioner, the employer must make all payments provided for by law. Failure to fulfill such an obligation is a direct violation of the labor rights and interests of the employee. Such an offense carries very serious penalties.

So, what to do when you find yourself in such a situation? Is there a chance to be heard? The Labor Code of the Russian Federation provides for an entire section (No. 13) regulating the procedure for protecting the labor rights of citizens, considering disputes arising in this area, as well as bringing violators to justice.

When faced with evasion of payment of due compensation, a pensioner can use the following options to protect his interests :

1. Contact your trade union organization for help.
2. Write a complaint to the state labor inspectorate.
3. File a lawsuit.

Special material has been prepared on the topic of how to complain to the labor inspectorate about an employer; we recommend reading it.

These methods should be applied gradually, starting from the easiest method of influence and up to litigation. In addition, you must first talk with management, explaining your point of view and supporting it with legal norms.