Is it possible for an employee to refuse another position when being laid off?

Often during periods of crisis, in order to be able to hold on and not reach the stage of bankruptcy or closure of the enterprise by the owner, a decision is made to reduce the staff or number of employees.

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.

According to the second paragraph of Art. 81 of the Labor Code of the Russian Federation, the employer has every right to initiate the termination of an employment contract with employees before the expiration date of the concluded agreement or at any time when an employee is hired for a permanent job indefinitely.

But at the same time, in order to protect the rights of dismissed employees, in accordance with the provisions of Art. 180 of the Labor Code of the Russian Federation, the legislator guarantees certain benefits and compensation to persons who have been laid off.

Reduction of headcount and staff: step-by-step procedure

According to clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in cases of reduction in the number or staff of employees of an organization or individual entrepreneur.

The employee was laid off and was not offered another vacancy.

There were free rates, but the employer gave them to other employees who were also laid off. Three authorities agreed with the manager: there are no vacant positions, so the company cannot provide anything in return. But the organization could not choose who to offer free bets, the Supreme Court corrected them.

Vitaly Aksenov* held various positions at the Mining and Chemical Combine, owned by the Rosatom state corporation, for almost 29 years (from 1990 to 2019), and since 2021 has been a milling operator. In October 2018, he received notice of the upcoming layoff. He was fired on January 10, 2021. Aksenov considered that the employer’s actions were illegal, since he was not offered a different rate. Therefore, the plant employee went to court.

When must an employee respond to a transfer to another position?

When reducing staff, the employer is obliged to carry out a number of measures that are provided for by the Labor Code of the Russian Federation. In particular, an employee whose position is being reduced must be notified of the upcoming dismissal against signature at least two months before the dismissal, and also be offered another available job (vacant position) that the employee can perform:

• taking into account his qualifications and health status;
• The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In this case, the employer is obliged to offer the employee all vacancies that meet the requirements that will appear throughout the entire period of notice of dismissal. The legislation does not provide for a period during which an employee must decide to transfer to an offered vacancy.

The employer has the right to set a deadline for the laid-off employee to accept or reject the offer of transfer, calculated in this case from the moment the employee is notified in writing of the need to provide a response. We believe that the employer can set, for example, at least several working days as a reasonable period in such a situation. If, after the expiration of the appropriate period, written consent (or refusal) to the transfer is not received from the dismissed employee, then the employer may accept other persons for the vacant positions offered to the employee.

What vacancies may be offered?

Article 81 of the Labor Code of the Russian Federation indicates that the employer is obliged to offer the retrenched employee vacancies that meet the following requirements:

• this position is currently vacant;
• it corresponds to the employee’s qualifications or is inferior;
• the employee’s health condition allows him to work in this position;
• the workplace is located in the same area as the position being liquidated. The collective agreement may indicate that the employer must offer the employee positions in another region.

An employee who has been laid off may also be offered a temporary position. The St. Petersburg City Court indicated in cassation ruling No. 33-3894/2012 dated March 15, 2012 that the employer must provide information about all possible positions at the enterprise: both permanent and temporary.

The qualifications of an employee on the basis of Article 195.1 of the Labor Code of the Russian Federation mean a person’s professional skills, his experience, level of skills and knowledge. What requirements are presented to the applicant are formulated in the job description.

Article 195.1 of the Labor Code of the Russian Federation. Concepts of employee qualifications, professional standards

Employee qualifications - the level of knowledge, skills, professional skills and experience of the employee.

A professional standard is a characteristic of the qualifications necessary for an employee to carry out a certain type of professional activity, including the performance of a certain job function.

Part three is no longer in force on July 1, 2021. — Federal Law dated May 2, 2015 N 122-FZ.

It is very important to offer the redundant all possible positions in the organization. Even if the employer is confident that the person will not accept, this does not relieve him of the obligation to submit such positions for consideration.

Refusal to transfer to another job if laid off

Transfers to another permanent job always require the written consent of the employee, and the law does not establish exceptions to this rule.

Consequently, he may refuse to transfer to the proposed position. And this will be lawful and cannot cause any adverse consequences for him (imposition of penalties, deprivation of bonuses, dismissal).

If an employee refuses the offered positions, the employer dismisses him upon expiration of the notice period for dismissal due to reduction. Taking into account all due payments.

Employee's right to severance pay

An employee whose employment agreement has been terminated due to a reduction in staff or numbers has the right to receive severance pay from the employer . The amount of the benefit must be equal to the average monthly earnings during the period of work at the enterprise or organization.

The average monthly salary must be retained by the employee who has lost his job for the entire time needed for employment, but no more than two months from the date of dismissal. Payment of severance pay can also be made in the third month after dismissal, but only if, after the layoff, the employee registered with the employment service and within two weeks they could not find a new job.

An employment or collective agreement may stipulate increased amounts that are paid to employees in the event of layoffs. For those who work in the Far North or areas with the same status, labor legislation determines longer terms for payment of severance pay in the event of layoffs.

For unworked vacation days due to layoffs, deduction from wages is not allowed.

As we can see, the state protects citizens from unjustified layoffs, establishes compensation in case of job loss, and gives citizens the opportunity to challenge their dismissal.

FAQ

Question: I work in the sales department as a leading specialist in analysis and statistics. The other day, my manager informed me that I had completed training for a sales manager in order to transfer me to this position in the future. I absolutely don’t want to work in this. The fact is that there is a month and a half left until the end of the year and there is such confidence that the position I currently occupy will not be in the new staffing table, and any employer does not need difficulties with layoffs. As far as I understand, I have the right to refuse a new position if working conditions change, etc. What awaits me if I refuse? Should I be given early notice of a transfer or layoff? What to sign and what not to sign?

Answer: The employer does not have the right to transfer you to another position without your consent.
He will have to reduce this one and introduce another, and he must inform you about this no later than 2 months before the start of the reduction. You also have the right to refuse a new position if it is offered to you before the expiration of the notice period. Then you will be dismissed due to a reduction in staff and numbers with all payments provided by law. Rate the quality of the article. Your opinion is important to us:

What positions can be offered?

Any position may be offered provided that it meets certain requirements, in particular:

1. The place must really be vacant. At the same time, the legislation of the Russian Federation allows that this position can be vacant both on a permanent basis and on a temporary basis, for example, if a permanent employee is absent for legitimate reasons. The employee can also choose the position in which the employee is currently working part-time. In this case, the employment contract with the latter will be terminated, since a permanent person has been found for this position.
2. The available and proposed vacancy must fully correspond to the professional skills of the employee, as well as the current level of his education and qualifications. The level of compliance can be compared using specific requirements for a specific position, which must be documented.
3. Even if the only positions left in the organization are those that pay significantly less than the employee's earlier position, the manager must still include such vacancies in the written offer. An employee may also be offered a higher position if its requirements are sufficiently similar to his current place of work.
4. The actual place of work also plays an important role. The employee must continue to perform his job duties in the same territory as before. Sometimes it is allowed for the workplace to be located in another institution, but always in the same territorial area. The employee, in turn, retains the full right to refuse the offered position if the new location of the organization is too far from his home or current place of work.
5. When drawing up a formal job offer, the manager must also take into account the current health status of a particular employee.

Example of a notice of layoff of an employee

Limited Liability Company "Krona"

OGRN 368961684646 INN 877951354354

legal address: 142019, Russia, Moscow region, Domodedovo, st. Kirova, 20

February 19, 2021 Domodedovo city

Shchelokov Igor Valerievich

address: 142016, Moscow region,

Domodedovo, st. Vasilyevskaya, 37-8,

sales manager

economic department

Notice of employee layoff

Dear Igor Valentinovich!

In accordance with Art. 180 of the Labor Code of the Russian Federation, we notify you that due to a reduction in the staff of the Limited Liability Company "Krona" (order No. 38 of February 10, 2018), the position of sales manager in the economic department that you occupy is subject to reduction from April 20, 2021 .

According to Art.

How to refuse a promotion correctly

Not all managers are capable of diligent performers and competently carry out personnel changes. What should you do if you are appointed to a leadership position, but you don’t like the changes?

• If in doubt, ask for time to think. Weigh the pros and cons.
• Don't delay in answering. Time is money.
• Do not try to dodge to find the most acceptable reason for refusal. Honesty is a point in your favor.
• Explain to your manager why you don’t see yourself in the position that’s being offered to you. Less emotions, more arguments.
• Indicate what benefits you bring and will bring to the company if you are left in your current position.
• Offer your manager an alternative that will allow you to combine your favorite job and responsibilities.

Victoria Zaborskaya

I am sure that with competent actions of the personnel officer, refusal of a promotion will not lead to a change in labor relations.

“A good HR specialist, having learned the reasons for the refusal, will either work on the employee’s doubts or select the most suitable candidate for the position,” the expert comments.

How to give notice of layoff to an employee

Since the employee is in an employment relationship with the employer, serving the notice is usually not difficult. There must be 2 copies of the document. One is given to the employee, the other is for personal use. And on the second copy it is necessary to put the recipient’s signature, date and transcript. Or draw up a Certificate of Refusal to Sign or Receive.

When preparing a notice of layoff of an employee, please note that some employees have additional guarantees (Part 6 of Article 81, Part 2 of Article 261, Part 2 of Article 82, Part 3 of Article 39, Part 2 of Article 405 Labor Code of the Russian Federation), otherwise you will have to satisfy the application for reinstatement at work.

The procedure for presenting an official proposal and its main features

Current regulations establish fairly strict requirements regarding mandatory compliance with the deadlines within which the manager is obliged to issue an offer to the employee. This period is equal to two calendar months. That is, it is during this period of time that the employer is obliged to formulate an offer, including all current vacancies. It also happens that within two months after the official offer is made, new vacancies appear at the enterprise. In this case, the manager must draw up a new document, including a new free space. You can do this an unlimited number of times, until the very moment of contraction.

If at the time of issuing proposals to the redundant employees one of them is absent, for example, on sick leave, he must still receive this document within the prescribed period. In such a situation, in order not to violate current laws, the employer can use sending the document through a courier. If an employee is on sick leave for a short period of time, then after returning to work he must notify the employer of his decision regarding the proposed vacancies. To do this, he needs to write the appropriate answer in the space provided in the document.

As can be seen from the above, the proposal for available vacancies during layoffs is a fairly important document. Despite the fact that the legislation of the Russian Federation allows this procedure to be carried out orally, it is still better to choose the standard option - with the preparation of an official document. In this way, the employer will be able to protect his own interests and rights. This will be especially true if the layoff procedure is accompanied by numerous disputes with employees and even litigation.