Labor legislation
Before getting interested in the subtleties and nuances of the process, let’s find out what labor legislation generally says about layoffs. Is it even possible for an employer to carry out such actions?
Code articles
A reduction in the number or staff of an enterprise may well be carried out. This is considered termination of the employment contract at the initiative of the employer, and if the latter has no other choice but to reduce the number of his subordinates, then paragraph 2 of Article 81 gives him such a right.
At the same time, the employer’s actions must not violate other articles of the Labor Code of the Russian Federation.
So, for example, the boss does not have the right to lay off a pregnant woman, since this would contradict Article 261 of the Labor Code.
Difference between abbreviations
Of course, if you are in the position of an employee that the company wants to get rid of, you may not care how you are fired: by reduction in headcount or staffing levels, but understanding what the difference is can be useful. A downsizing is simply a reduction of people in an organization, regardless of their positions. That is, when out of five accountants, three are retained, and two are fired, two security guards are retained, and eight more are fired - this is a reduction in numbers.
Staff reduction is the removal of a position completely from the list of positions in an organization. For example, three watchmen and two security guards were listed on the staff list, but the positions of the guards were completely removed - this will be a reduction in staff.
Most often, experts recommend that employers take the second route of reduction, since in this case they may not adhere so strongly to the preemptive right. We will talk about what this is below.
Is it possible to refuse?
A worker may refuse to be transferred to another position - this is his legal right. Moreover, after the employee refuses, no negative consequences will follow for him.
However, if the employer does not have any positions in reserve that would be empty at the moment, then the employee’s refusal of the proposed transfer in this case will lead to the final termination of the employment contract and, accordingly, the business relationship (about how the procedure will take place in this case dismissal of an employee, find out here).
To summarize, we note that any employer during layoffs is obliged to offer its workers other vacant jobs. This is regulated by law.
The transfer of employees to new places is accompanied by the execution of a notice, application, order and additional agreement when the main employment contract is changed. The employee has the right to refuse offered vacancies.
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Reduction procedure
To understand how an employee is transferred to another position when staffing is reduced, you need to understand how the procedure for terminating an employment contract should generally occur.
As in the general case, when reducing the number of employees, the following sequence is followed:
- agreement on the period of dismissal;
- issuance of an order for the enterprise;
- settlement on the last working day.
In this case, the employee usually writes a letter of resignation, but in case of layoffs, no statement is required from him - after all, the initiator is the employer. But a mandatory condition for dismissing employees due to layoffs is notification of the upcoming event.
Notification
Two months before the expected date of layoff, written notice must be sent to each employee warning that he is among the future layoffs. Under this notification - strictly individual - the employee must sign with the obligatory decoding of the signature.
Employee statement
Since, as mentioned above, the initiator of dismissal is the employer, a statement from employees is not required: there is a notice signed by the employee, there is an order - and these are sufficient grounds for terminating the employment relationship.
If the employer begins to demand a statement from you, and even with the wording of your own free will, you can safely refuse, and if they continue to insist, then threaten with legal proceedings for violating the dismissal procedure.
Payment to employee
According to the law, employees who are subject to staff reduction, upon dismissal, in addition to the mandatory payment of wages, bonuses (if they are due according to the terms of payment in the organization) and compensation for unused vacation days, are also entitled to severance pay in the amount of average monthly earnings.
p>The organization must pay the same benefit if, within a month after dismissal, the former employee has not found a new job. And if an employee managed to register with the employment service within two weeks after losing his job and did not find a job two months after his dismissal, then he can count on a third payment in the same amount as the first two.
Documents for translation
The process is accompanied by a massive package of documentation. So, let's look at each document separately.
Act of notification of availability of another unit
The notification is issued in free form. This is due to the fact that the Labor Code of the Russian Federation does not provide for a different format for such a document.
When generating a notification, you must take into account the following points regarding the rules for drafting:
- The document is drawn up on the organization’s letterhead with the obligatory indication of the name of the enterprise. Since each individual employee must receive the notification in person, the document must include the full name, position and department of the specific worker to whom the paper is addressed, as well as his residential address.
- Each notification must have its own serial number and date of generation.
- Mandatory indication of compelling reasons for the reduction.
- The notification document must include the number and date of the basis order.
- notifications of vacant positions during layoffs
- notifications of vacant positions during layoffs
When filling out an information letter, it is very important to take into account all the nuances so that the document cannot be challenged in court.
Moreover, the notification must contain a separate paragraph indicating the proposal for existing vacancies that the worker is offered to occupy, preferably indicating the salary.
It is also advisable to record information about the employer’s right to terminate the employment contract early before the expiration of the two-month period.
The notification is endorsed by the responsible executive, the head of the HR department or the manager of the company. At the end of the document, the signature of the shortened person and the date of receipt of the notification are recorded.
This is important to know: Report on dismissal of the Ministry of Emergency Situations: sample 2021
You can include an additional line about the worker’s consent or disagreement to take the proposed positions.
Application for transfer
The employee must write a transfer application, which should include the following data:
- Desired position and salary level (in accordance with the regular salary).
- Full name and position of the manager, name of the enterprise.
- Employee's full name.
- Document's name.
- The current date is indicated at the bottom and the employee’s signature is placed.
- applications for transfer to another position
- applications for transfer to another position in case of layoffs
Additional agreement
This important document is prepared when information in the employment contract changes. The additional agreement is an indisputable annex to the agreement. In this regard, the agreement is drawn up in two copies. One is intended for the company management (HR administration department), and the second is given to the worker.
The document must include:
- Name and number.
- Mention that there are two parties involved.
- The main part.
- Please note that all other provisions will not change.
- Number.
- Details of the parties (company data and personal information of the employee, including full name, passport details, etc.).
- Signatures of both parties. Instead of the employer, only the director has the right to endorse the document.
- additional agreement on transfer to another position in case of layoff
- additional agreement on transfer to another position in case of layoff
Order
When drawing up an order for transfer to another position, it is important to adhere to the established form. The company has the right to use its own letterhead. However, it is mandatory to include the following details in the document:
- Name – order.
- Number.
- The wording is about transfer to another position.
- Full name, position, department of the employee.
- From what number is it transferred?
- The basis is an offer from the employer or a statement from the employee.
- Transcripts and signatures of authorized persons and the employee himself.
- Date of formation of the order.
- order for transfer to another position in case of layoff
- order for transfer to another position in case of layoff
Preemptive right
Of course, when reducing the number of employees, the employer cannot simply go through the list and point a finger at someone at random. He also cannot use the reduction to settle scores with unwanted employees - the reduction must be justified.
At the same time, we must not forget that some categories of employees are inviolable. For example, pregnant women, mothers with children under three years of age and minors. Therefore, when terminating employment contracts, you need to choose from those employees who do not fall into the category for which labor legislation guarantees additional benefits and protection. And from these people you need to select future former employees, guided by:
- qualifications;
- work experience;
- professional training;
- labor productivity.
This is called pre-emptive right - when those who have a certain number of advantages remain at the enterprise.
Who can be laid off?
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
A worker may be fired due to a reduction in numbers or staff, but only if he does not have a preferential right to be retained at work and the employer does not have the opportunity to provide him with another job for which he agrees.
Employees whose labor productivity and qualifications are higher have significantly greater rights to remain at work.
In case of equal productivity and qualifications, the employer will give preference to:
- having dependents (two or more);
- those who have suffered injuries at work or illnesses associated with dangerous and harmful working conditions;
- disabled people of the Second World War;
- who became disabled in military campaigns related to the defense of the Fatherland;
- on-the-job training courses at the order of the employer;
- the only breadwinner in the family.
It is unacceptable for the following to be dismissed due to reduction:
- women on maternity leave;
- women with children under three years of age;
- pregnant women;
- single mothers raising children under 14 years of age (if the child is disabled, then until he reaches 18 years of age);
- other persons raising children under 14 years of age without a mother (if disabled children - until adulthood).
Transfer to another position due to staff reduction
No matter who the employer plans to fire due to a reduction in numbers or staff, he again cannot do this just like that. First, dismissed employees must be offered to move to another place of work within the same organization.
The following conditions apply:
- the position may have the same pay and qualification requirements;
- the position may be lower;
- the position may be less paid.
The employer is not required to offer higher positions or vacancies in other regions.
An employee acting as head of a department should be prepared for the fact that he may be offered a courier position if there are no other available positions at the company. At the same time, if the position of head of a neighboring department is vacant, and the employee’s qualifications are fully suitable for it, but he is still offered to become a courier, he has the right to go to court.
What can be offered to an employee?
No matter which employee is included in the layoffs, the employer cannot do this as he wants. He must meet certain conditions for his actions to have legal force.
He must first offer a transfer to another job within his organization. The law dictates quite clearly:
- the new position may be paid in the same way as the previous one and have similar qualification requirements;
- if there is none, a lower one can be selected;
- the proposed vacancy may turn out to be lower paid if no others are found in the organization’s staff.
This is important to know: What documents are needed for the exchange after dismissal
In this case, the employer is obliged to offer the employee a redundancy transfer to a job that he can perform due to health reasons. If such is provided for by a collective or labor agreement (any other agreement), vacancies may be offered in another location. In addition, the employer is not obliged to offer the employee a higher position or vacancy.
If there are no vacancies of your own, there is an alternative - you can agree with business partners to transfer employees to another position in a partner company. To do this, you will need a list of vacancies compiled together with the management of a friendly company, a predetermined salary level and qualification requirements for each position.
An official letter of invitation to work will be required on behalf of the director of the counterparty. The law does not impose any special requirements on the form of the letter - it is enough that it contains information about the laid-off employees who are offered vacancies, information about the proposed positions and the date from which employment is possible. This document should convince employees that after dismissal they will not be left without work.
With such a letter, a person can even go to court if suddenly the employer refuses to hire him, and he wins the case.
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
The letter of invitation received by the company's mail should be familiarized to the laid-off employees so that they can express their attitude to the employer's offer: consent or refusal.
Is it possible to refuse a job offer if you are made redundant?
It often happens that employees sign up for vacancies offered to them without looking, fearing that otherwise they will simply be fired without any severance pay. In fact, this is not only wrong, but if your employer threatens you with a lack of benefits, it is simply illegal. If the employee is not satisfied with anything proposed, he has every right to refuse the proposals and, after a two-month period, will simply be dismissed due to reduction - according to the standard procedure, with an entry in the work book and the issuance of an average monthly salary.
Moreover, if the organization has, for example, five vacancies that suit you, and no one has yet been invited to them in writing, and you were offered to move to only one, which is completely unsuitable for you, you have the right to complain about a violation of the dismissal procedure. After all, the employer is obliged to offer all available positions, except, of course, those that require higher qualifications than yours.
Algorithm of actions
If the employee agrees to the employer’s proposal, he must also confirm his decision in writing.
Upon transfer, a new employment contract is signed with such an employee..
Until the date of layoff, the team member continues to work as usual in his previous position.
The day after the official layoff, the employee begins new duties in the vacancy he has chosen.
On the part of the employer, when laying off an employee, the transfer must be carried out in a specific manner. Conventionally, this process is divided into two stages - preparatory and documentary.
The following preparations are being made for transfer to another position due to job reduction:
- The immediate superior draws up a memorandum or presentation. In it, he indicates the reason for the employee’s movement and his personal data.
- The completed memorandum or presentation is agreed upon with the management of the company. Its director puts his signature on the document.
- The employee is given an official notice of the transfer, which is drawn up in any form.
- The employee writes a statement in any form.
In this letter he confirms his acceptance of the new vacancy. The document is written in the name of the director of the company, the contents indicate the name of the company, information about the employee, both positions are written down, signed and dated.
The entire preparatory procedure for transfer due to job reduction must be strictly followed to avoid offenses and fines.
Next, the second stage of job reduction and transfer begins, at which documentation is drawn up for signing by both parties.
To properly transfer an employee to another position, you need to complete the following documents::
- An additional agreement of the parties, which specifies information about the new vacancy and details working conditions, wages, name of the department, and so on.
The document is signed by the employer and the team member. Two copies are drawn up - one of them is attached to the new employment agreement or contract, and the second is given to the employee. - Order from the head of the enterprise regarding transfer to another job.
It is drawn up in format No. 5a, No. T-5 in accordance with the current GOST R 6.30-97. The document is printed in a single copy, but upon the employee’s first request, he is provided with a certified copy of this order.
Also, do not forget - if a worker is permanently transferred to another position, the corresponding entries must appear in his work book and personal file (No. T-2).
There is no need to carry out the procedure for dismissing an employee due to transfer to another vacancy at the initiative of the employer. Therefore, there is no need to make a dismissal order or a corresponding note in the work book.
Actions of an employee who has been laid off
In any case, the decision to accept or not accept management’s offer - to move to a new job or not to transfer - will be made by the employee himself.
The employer has no right to coerce, force, intimidate or threaten him, otherwise he will have to answer in court.
It might make sense to consider new offers and choose one, even if it pays less:
- if you want to remain in your organization at any cost;
- you know for sure that very soon a new department will open where you will find a place in your previous position, you just need to wait it out;
- found a good job at another company, but the vacancy becomes available in a few months.
You can refuse the transfer - you will still receive severance pay.
Anyone who has been laid off must be offered all possible vacancies at the enterprise. In this case, proposals should be drawn up in writing, in the form of an act, with a description of each option: what position, responsibilities and salary. Three such acts must be drawn up:
- at the time of notification of the reduction;
- a month later;
- the day before the reduction.
New vacancies will be included in the acts as they arise. If the proposed vacancy is rejected, the employee will be dismissed at his own request with the right to receive severance pay and other mandatory payments from the company.
But if consent is received, the enterprise’s personnel service can begin processing the transfer in connection with the reduction.
