Order of dismissal due to staff reduction - sample

Staff reduction is perhaps the longest and most difficult procedure for personnel officers and the head of an enterprise. To take into account all the nuances, comply with the requirements of the law and go all the way so that the State Labor Inspectorate does not have a single question - this is the main task of the company’s personnel service; the competencies of personnel officers are assessed according to such procedures. Private entrepreneurs who have hired personnel also need to know such details. After all, ignorance of the laws of the Labor Code of the Russian Federation can lead to serious financial losses.

• 2 What the legislation says
• 3 Algorithm for issuing order No. 1 - about reduction

  3.1 Form and requirements for execution of an order

Reduction of staff - procedural issues

Terminating an employment contract due to a reduction in staffing levels or headcount of an enterprise is not an easy procedure for a personnel officer. To reduce the number of personnel, it is necessary to carry out a whole range of measures. At the same time, not only the labor costs of the personnel service increase, but also the package of documentation. If the company’s lawyers or personnel department miss at least one serious stage in this process, this will entail recognition of the illegality of the dismissal of employees and the cancellation of all actions. One of the key stages of this process is the formation and issuance of a reduction order.

It should be noted that the concepts: “downsizing” and “downsizing” are actually different things:

• when staffing is cut, a certain specialty is deleted from the organization’s schedule;
• when the number changes, the position necessary for the continuation of the company’s activities remains, but the number of staff members performing the work decreases;
• The third option is often used by employers - they simultaneously reduce the size of the company and certain positions.

These distinctions must be understood to properly formulate the preamble to a reduction order.

Let's look at the details: for example, a private entrepreneur employs 6 sales consultants, a delivery driver and an accountant. Due to unstable sales, the individual entrepreneur decides to close one point and reduce the number of sellers to three. In this case, there is a reduction in the number of enterprises. If, in this case, the entrepreneur decided to remove the position of driver from his business, then this would be considered a reduction in staff and a change in staffing. It happens that both of these steps take place simultaneously: reducing the number (sellers in this example) and the staff (driver).

Unauthorized actions of the employer can result in serious financial losses and the need to reinstate the unwanted employee

How to fill out the document correctly?

When staffing is reduced, the employment contract is formalized as follows:

• Dates are written in Arabic numerals only. In particular, when an employee is dismissed on September 25, 2021, the following entry is made: “09.25.2019” (clause 1.1 of the Instructions).
• The necessary entries are made with a pen with waterproof black, purple or blue ink (clause 1.1 of the Instructions).
• The date of dismissal of an employee, established in the labor contract, must be the last specific day of the employee’s actual work, unless otherwise established by an official contract (employment agreement), a separate agreement between the employee and the employing company (IP) or a specific federal law (clause 5.1 of the Instructions) .
• Necessary amendments to an incorrect entry are made only by creating a new entry declaring the previous one invalid (clause 1.2 of the Instructions).
• Entries are made in strict accordance with the specific provisions of the Labor Code of the Russian Federation (clause 14 of the Rules).
• Cancellation of a contract with an employee is made by a record that must contain a link to the relevant article, paragraph of the Labor Code of the Russian Federation or other federal law. When abbreviated, this is clause 2, part 1, art. 81 Labor Code of the Russian Federation.

Staff are notified in advance of future layoffs. Such notification is carried out only in writing (against signature). After this, the head of the organization (employer) issues an official order confirming the actual dismissal of the employee (read more about what the employer is obliged to do when laying off an employee here, and from this article you will learn how this procedure is formalized and what documents are issued).

What the laws say

When carrying out the employee reduction procedure, it is important to correctly prepare and generate the entire package of documents related to this process.

Please note: as explained by the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 (as amended on November 24, 2015) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, when a dismissed person applies to a court or labor dispute inspectorate, the obligation to prove the legality of the actions rests with the employer , and only documentary justification will be taken into account.

By ignoring the procedure established by law, an organization can ensure that a laid-off employee is reinstated in his position by the court with full payment of salary for the entire period of forced absence from work.

To begin with, in order to understand the purposes of issuing a reduction order, we will highlight the main postulates enshrined in the third part of Article No. 81 of the Labor Code of the Russian Federation:

1. The employer is obliged to warn each employee about the upcoming layoff and, most importantly, inform everyone personally, having received the employee’s personal visa, at least 2 months before dismissal (part two of Article No. 180 of the Labor Code of the Russian Federation). Therefore, it is so important to take the first step correctly - to create the main document for this event.
2. When a company (private business) is downsizing its staff or headcount, dismissal of employees is possible only if there is a written refusal from another job available to the employer. In this case, the person can be offered, among other things, a lower-paid and lower-ranking position.
3. In this case, a personnel officer, director or individual entrepreneur needs to take into account the so-called pre-emptive right of an employee to retain him in his workplace (Article No. 179 of the Labor Code of the Russian Federation). This requirement states that an employer may not fire a person based on its own prejudicial choice. First of all, workers with lower qualifications and productivity should be laid off.

It should also be taken into account that if the enterprise has positions that are shared by other employees, these positions are considered officially vacant by legislators, that is, they must be offered to those being dismissed if such a job suits the person based on his education, qualifications, work experience, and health.

Therefore, before drawing up a document notifying about the upcoming layoff, the employer must:

1. Determine the exact date of the procedure.
2. Conduct preparatory work by examining the register of all employees, taking into account their qualifications, combined positions, and other circumstances (for example, a ban on the dismissal of certain categories of employees). So that when optimizing the staff, those people who are really needed by the company remain at work.
3. Make a list of candidates for dismissal.

For information: when reducing staff, it is impossible to dismiss the following persons:

• an employee when he is on vacation or on sick leave (based on Article No. 81 of the Labor Code of the Russian Federation);
• pregnant women, women caring for children under three years of age, as well as single mothers (Article No. 261 of the Labor Code of the Russian Federation);
• Minors can be laid off only with official permission from the labor inspectorate and the Commission on Minors' Affairs (Article No. 270 of the Labor Code of the Russian Federation).

And the last thing to consider: Chapter No. 27 of the Labor Code of the Russian Federation establishes certain requirements for the employer when reducing the number or staff of the company to pay compensation to the dismissed person - compensation in the amount of average monthly earnings. And also for the period until a person gets another job, he must receive additional benefits, however, no more than two months (clause 2 of part one of Article No. 81 of the Labor Code of the Russian Federation).

Having not received the required payments, the former employee has the right to appeal to the labor inspectorate, court or prosecutor's office.

Courts, as usual, take the side of employees when disputes arise regarding dismissal, and there are a lot of “slippery” moments at the basis of “staff reduction.”

What to do if a mistake is made

Sometimes personnel officers, due to inexperience or carelessness, make mistakes when making an entry in the work book when reducing staff. An erroneous line cannot be crossed out, covered up with a proofreader, or attempted to make any corrections.

The only acceptable way to correct it is to first record the invalidity, and then re-record the necessary information in the correct way. The personnel officer has to constantly be extremely careful when working with documentation.

Also see “The entry in the work record is invalid: how to correct it (sample).”

Read also

29.09.2018

Order No. 2 - on changing the staffing table

When a company undergoes a downsizing procedure, it usually involves making adjustments to the general staffing table. This is especially true in case of major optimization of headcount, restructuring of the enterprise and, as a result, significant changes in the document regulating the structure of the organization. This is a serious stage, and it must be carried out if certain requirements are met.

Typically, such actions are formalized by an order, which, in addition to the basic rules of document flow mentioned above, must indicate:

• structural units that are subject to reduction and their number;
• wage fund, according to the regulations;
• the specific date on which the state's adjustments will take effect.

If the number of employees (positions) being reduced is insignificant, such a decision can be combined with a reduction order. In this option, the key provisions of the staffing table are prescribed in one or more paragraphs.

A sample order for approval of the staffing table looks like this

Who can't be fired due to redundancy?

Employees of the following categories cannot be dismissed due to reduction in accordance with Article 261 of the Labor Code:

• Single mothers who are raising a disabled child under 18 years of age;
• Women whose family has children under 3 years of age;
• Mothers who raise a child under 14 years of age alone, without the help of a husband;
• An employee who is the parent (legal representative) of a disabled child under 18 years of age, provided that only this employee brings income to the family and his spouse is not employed;
• An employee who is the parent/legal representative of a child under three years of age, provided that his family has several young children and their other parent is not employed;
• Pregnant women who have documented their status.

How to properly notify an employee

As mentioned above, according to the requirements of the second part of Article No. 180 of the Code, when reducing the number/staff, the employer must notify employees no later than two months before dismissal. This must be done personally; each employee must sign that he has read the Redundancy Order. The visa must be included in the individual Notice accompanying the Order. In this paper, the person needs to be given a list of vacancies at the enterprise that he could take, according to his qualifications and health status, even if they are less prestigious and with a lower salary.

Let us remind you once again that if the company has positions that are held by another employee, the employer is obliged to offer them to the candidate for dismissal. The legislation in this case is clear: when combining positions, the employee occupies only one position, the second one - the one being combined - is considered open (vacant). Recent judicial practice proves this, for example, the decision of the Irkutsk Regional Court dated October 19, 2017 in case No. 33–9608/2017.

On the other hand, if an employee works combining two positions and needs to be fired, it is not necessary to offer him such a position. It is legal.

There are a few more nuances regarding notice periods:

• It is enough to notify seasonal workers about layoffs 7 days before termination of the contract;
• the period for “conscripts” under a contract (employed for a period of up to two months) is 3 days before dismissal;
• the two-month period before termination of the employment relationship with an employee included in the staffing table can be reduced, but only in one case - if, in accordance with the third part of Article No. 180 of the Labor Code of the Russian Federation, the employer offers in writing, in a well-formed notice to the employee, to terminate the employment contract early and the employee goes for it. At the same time, the person retains the right to compensation and guarantees that are due to him upon layoff, and also receives over-compensation in proportion to the time remaining before the two-month notice period of dismissal has passed.

It is not difficult to issue a notification; the process of working through candidates for dismissal and the vacancies that can be offered to them without violating their rights will take much more time. When preparing a notice, there are several things to consider:

• the document is prepared in two copies, the first for the employee, the second for the company archive;
• do not skimp on giving the employee a copy with the director’s original signature, that is, do not make a copy;
• in the document itself you must indicate: the input data of the current Reduction Order;
• legislative basis - articles regulating information, status, consequences;
• announce the positions that may be offered to the dismissed person and the salary for the vacant position;
• the final part should be the words that the employee has read the document and the proposed vacancies, his visa and date.

The notice of staff reduction contains basic information: grounds, vacancy proposals and deadlines

If the enterprise at the time of downsizing does not have any vacancies that can be offered to the dismissed person, the second option of formulation can be used here - to warn about the lack of suitable positions.

The text could be as follows:

There are currently no vacancies at the company. If suitable vacancies become available within the next two months from the date of receipt of this notification, they will be offered.

If the proposed vacancies do not suit you, 2 months after receipt of this notice, the employment contract with you will be terminated, in accordance with paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation (reduction in headcount and staff) with the provision of all guarantees and compensation provided for by law.

You have the right to terminate the employment contract before the expiration of the two-month period.

In the event that it is not possible to obtain an employee’s signature: the person is absent from the workplace or refuses to endorse the notification, a corresponding entry is made on the document, and witnesses (at least two people) are involved in the process.

Please pay attention to the proper formatting of such a refusal. Due to the fact that every employee has the right to appeal his dismissal in a court or labor authority, this procedure has an important function. To express his disagreement with the dismissal, the employee has only 1 month from the moment he was given a copy of the final order or work book (Article No. 392 of the Labor Code of the Russian Federation). Therefore, the endorsement of the interim document by the dismissed employee is additional insurance for the employer against legal disputes and payments.

If an employee refuses to sign and pick up the paper, the personnel officer (or entrepreneur) has the right to send a notification by mail: by registered mail with notification and a list of the attachments. The date of delivery of this letter to the addressee will be considered the day of receipt.

You can send a notification by express mail or courier. The main thing is that the recipient signs for delivery.

Know: judicial practice sides with the employer if the personal file does not indicate a changed address of residence, considering that the employee is obliged to promptly notify the HR department or manager when changing place of residence. If for this very reason the employee does not receive a notice, dismissal order or work book, there will be no claims against the company.

Reasons for reducing the number of employees

The employer has the right to independently determine the grounds on which staff are being reduced (part 1 of article 22 of the Labor Code of the Russian Federation, clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, Determination of the Constitutional Court of the Russian Federation dated July 15, 2008 No. 413-O-O) .

Most often, reductions are the result of:

• low profitability;
• unfavorable economic situation;
• changes in production technology (for example, through automation).

In order to defend their point of view in court, management should obtain the necessary information to explain the reasons why the need for a regular event arose.

Order No. 3 - dismissal of an employee

If the employee does not agree with the specific vacancies proposed in the notice and writes a refusal, an order for his dismissal is prepared. As a rule, personnel officers take the standard form approved by the State Statistics Committee of the Russian Federation T-8 - an order to terminate the employment contract. You can fill it out by following the link.

When preparing the document, in addition to the basic data: full name, position, personnel number, date of admission and dismissal, the following is indicated:

• wording referring to paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation (reduction of the organization’s staff);
• in the “grounds” paragraph, in addition to the reason for dismissal - “reduction of staff of the organization”, you must enter all the details of documents that are related to dismissal for this reason: the number and date of the order to reduce staff;
• indicate that there was a written notification to the employee of the enterprise about him, with the proposed vacancies;
• a waiver of possible positions is attached.

Personnel officers, as in the case of notification, must familiarize the dismissed person with the order against signature. If it is not possible to obtain an employee visa, you need to follow a standard plan (similar to a notification).

General rules for filling out a work book

The procedure and general provisions for filling out this personal document are set out in the Instructions approved on October 10, 2003 by Resolution of the Ministry of Labor of Russia No. 69, as well as in the Rules of the Government of the Russian Federation No. 225 of April 16, 2003. It is important to enter the entry correctly, in legible handwriting.

Typically, a ballpoint or gel pen of blue or purple color is used for this. The ink must be water and fade resistant. Some employers are interested in whether the name of the organization can be stamped to simplify filling out the document.

This approach does not meet the requirements for book design. But, nevertheless, the state labor inspectorate does not hold employers accountable for this. It is important that the stamp does not capture unnecessary columns.

General rules for recording the dismissal of an employee:

1. the first column contains the serial number of the entry;
2. the next column indicates the date of termination of the employment relationship;
3. in column No. 3, a record of the reason for dismissal is made. It is important here to refer to the provisions of the current legislation;
4. The fourth column is dedicated to the document on the basis of which the entry is made. This is a dismissal order. The number and date of this document are indicated.

When filling out the book, you should adhere to the following recommendations:

• do not use a proofreader to correct errors;
• write competently and to the point;
• do not use abbreviations;
• the date, month and year should be indicated in Arabic numerals;
• When filling out one column, do not affect the adjacent ones;
• do not abbreviate words (it would be correct to write “article”, not “article”).

Decision on payment of severance pay - No. 4

After dismissing a person under the eighty-first article of the Code, the employer still has certain obligations. While severance pay is paid to the dismissed person on the day the work book is issued and the order for his dismissal is signed, the obligation remains - if a person registers with the employment center within a month and cannot find a job, the organization must compensate him with so-called compensation. Their volume is the average monthly salary. But they are paid only for no more than two months.

All these points are recorded in the final order after the person is fired.

In order to be paid compensation, a person must provide employment and a certificate from the employment service

Table: stages of the reduction procedure

Early dismissal due to layoffs

An employee facing redundancy is not required to remain at work for the entire two months before the appointed date. He may resign early in order to speed up the search for new employment. Having made such a decision, he informs the manager about it in writing, puts the date of execution of this document and his signature. The statement must include the following points:

1. Familiarization with the order on the planned reduction procedure (here you should indicate the details of the order, as well as the date when it was brought to the attention of the employee);
2. Confirmation of the fact that he was offered vacancies open in the company where he works;
3. Desire to quit early;
4. A message that the employee is claiming all payments due to him under the law;
5. The date of this application and the planned date of leaving the enterprise;

Attention

The manager signs the application submitted to him, expressing consent to his early dismissal. Next, a corresponding order is drawn up and registered properly.

A note about dismissal is made on the pages of the work book, where the reason will continue to be a layoff, and not one’s own desire.

Attention

In this case, the employee will still receive all payments due to him, including severance pay and payment for unworked time, from the date of actual dismissal to the day of the originally planned dismissal.

Rules for storing orders

An order to reduce staff/numbers is included among the documents regulating the main activities of the enterprise. Such documents also include a decision-order to change the structure of the company (staff). All similar regulations must be kept at the enterprise until its closure.

The place of storage of such documents is determined by the director or owner of the company. In practice, such documentation is archived in the personnel department, since this is precisely their competence, or in the accounting department or with the assistant secretary. If there is no personnel management service or assistant in the company, for example, an individual entrepreneur, such documentation may be kept by the businessman.

A similar, but more strict approach should be taken to storing orders for the dismissal of employees if personal matters are being conducted.

Storing personal files of employees is a responsible procedure, since personal files contain confidential, personalized data of a person. Therefore, if it is customary for an organization to maintain a personal archive (and it should be noted that this is not regulated by law for business), it must be organized in accordance with the requirements for archiving personal data: a separate room or a fireproof locker-safe with a key.

Personal files of employees must be kept in the employer's archives for at least 50 years. But in order not to be responsible for a person’s personal data, upon dismissal, the employer has the right to give all copies to the person, leaving only the originals in the folder: application for admission, resignation or resignation letter, order to dismiss the employee.

Storage of documentation is a serious issue in the work of a company.

The difference is in the change in number and staff (position)

The Labor Code of the Russian Federation does not contain any information regarding the main differences between these two concepts. However, they are different from each other. Thus, the number of employees means the total number of personnel working at a particular enterprise. When it changes, there is a reduction or increase in the number of employees occupying a particular position (for example, the dismissal of two waiters out of six).

Staff is the totality of all positions that are recorded in the organizational structure of an economic entity. Thus, when a staff position is abolished, all persons who occupied this position are dismissed.