They do not provide all vacancies during layoffs. What to do?

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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Notification of layoffs

Having made a decision about an upcoming layoff, the employer is obliged to notify the employee personally about this in writing, at least two months before the start of layoffs. The fact that the employee was properly served with notice of layoff will be indicated by his signature on the letter.

The fact that an enterprise is preparing to lay off workers must be reported not only to those who are being laid off, but also to the trade union organization and the employment service. The deadline for notifying the elected body of the primary trade union organization is the same as for the employee, i.e. no later than two months before the start of layoffs , and in case of mass layoffs - three months .

Dismissal of trade union members due to layoffs is possible only with the consent of the trade union organization. The period for notifying employment services about future layoffs is the same - two months before the start of measures to dismiss workers.

For employers working as individual entrepreneurs, this period is two weeks. In its appeal to the above authorities, the employer must provide complete information about the position, qualifications and working conditions of each dismissed employee.

Types of employee reductions in an organization

Downsizing is always an unpleasant moment for employees of an organization. However, sometimes this is the only way for the owner to save his business.

There are two types of abbreviations:

• Reduction in numbers
• Staff reduction

In the first case, there is a decrease in the number of employees in the organization. Let's give a simple example.

The sales organization employs 5 sales managers. Due to the decline in volumes, the company is going through hard times, and therefore a fundamental decision was made to make cuts. At the same time, out of 5 managers, only 2 will remain working. Such dismissal is a reduction in the number of employees.

In the second case, a decision is made to remove certain positions from the staffing table. For example, the director decided that the position of secretary in the company is unnecessary; he will deal with all organizational issues personally. In this case we are talking about staff reduction.

Clause 2 of Article 81 of the Labor Code of the Russian Federation allows the employer to sever the employment relationship with the employee on his own initiative. In return, the employee can count on certain compensation when being laid off. This is stated in Article 180 of the Labor Code of the Russian Federation.

Guarantees for laid-off workers

According to the law, when reducing the number of employees or staff, the employer must offer the dismissed employees another position at this enterprise.

In this case, the proposed position must correspond to the qualifications of the employee and his state of health, however, it can be either lower-ranking or lower-paid. When being laid off, the employee has the right to receive from the employer information about all vacancies that exist in the given locality or, if provided for by the collective agreement, outside it.

And only if the employer cannot fulfill its obligations to the employee to provide him with a vacancy or the employee refused to provide written consent to the proposed job, can a reduction be made.

If the parties have reached an agreement, there is no need to wait until the end of the two-month period to terminate the employment contract.

Criteria for proposed positions

The employee will be dismissed if there is no possibility of transfer to a vacant position that meets the criteria (Part 3 of Article 81 of the Labor Code of the Russian Federation). The employer offers the redundant employee positions that meet the following requirements:

1. The position must be vacant or temporarily occupied. The employee is offered jobs and positions occupied by part-time workers. The contract for additional work is terminated when a person appears who has expressed an intention to be employed in a position at the main place of employment (Article 288 of the Labor Code of the Russian Federation). Offers of positions occupied by part-time workers are made at the request of the employer.
2. There is compliance with the employee’s qualifications, confirmed by diplomas and certificates. The concept of qualification is given in Art. 195.1 Labor Code of the Russian Federation. The requirements approved in the job description are taken into account.
3. The workplace is located in the person’s locality of residence.
4. A state of health suitable for the performance of the position.

The employer must offer all relevant positions, including those of lower rank or pay. If there is one vacancy and the same qualifications of those being laid off, an offer is made to all employees at the same time. There is no preemptive right to take advantage of a vacancy.

Preferential right to remain at work in case of staff reduction

The guarantees established by law for laid-off workers also include a preferential right to remain at work during layoffs. This right is that the employer will have to leave at the enterprise the employee whose qualifications are higher and whose quality of work is better than that of others.

If there are several such employees, then, according to the law, the following categories have the right to retain their positions:

• - workers who support two or more disabled family members;
• - workers whose earnings are the only source of income for the whole family;
• - employees who were injured or have an occupational disease while working at this enterprise;
• — disabled people of the Great Patriotic War and disabled people who took part in hostilities to defend the state;
• - employees who improve their qualifications at the place of work in the direction of the employer.

A collective agreement drawn up at an enterprise or organization may indicate an expanded list of categories of workers who have a preferential right to remain at work in the event of staff reductions.

In addition, the Labor Code of the Russian Federation protects from layoffs pregnant women, mothers raising children under three years of age, single mothers raising children under fourteen years of age, or a disabled child under eighteen years of age, as well as those who The following categories of children are being raised.

Employees who are on vacation or sick leave due to temporary disability at the time of layoff cannot be dismissed In case of violation of this norm, the employee has the right to appeal the dismissal in court and be reinstated in his previous position.

This must be done within one month from the day the employee received a copy of the dismissal order or from the moment the work book was issued. Otherwise, you will have to restore the missed deadline in court. According to the Civil Procedure Code, the prosecutor must make his conclusion on issues of reinstatement, and he can also appeal the court’s decision.

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Reducing staff: typical mistakes of employers

Reducing the number of employees is one of the effective ways to reduce costs or slow down the pace of production activities if the organization's product has ceased to generate sufficient profit.
In this article we will tell you how to avoid mistakes when reducing staff. If an employer decides to reduce the number of employees, he needs to take into account all the nuances of this complex process. Mistakes made do not reduce, but, on the contrary, significantly increase personnel costs.

For example, a court may reinstate an employee at work and oblige the employer to pay him the average salary for the entire period of forced absence (Article 394 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation), as well as to compensate for moral damages (Article 237 of the Labor Code of the Russian Federation). In this case, the employer is obliged to pay all legal costs (Article 88 of the Civil Procedure Code of the Russian Federation).

In addition, if an employee applies for protection of his rights to the labor inspectorate, if the reduction is incorrectly executed, the employer faces administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Let's look at the typical mistakes that employers make when filing staff reductions.

THE NOTICE OF REDUCTION IS INCORRECTLY COMPLETED

When warning employees about layoffs, it is necessary to take into account all legal requirements, as well as established practice, in order to reduce the risk of disputes in the future. We recommend issuing a notice of reduction in the number of employees. The more detailed the document is, the fewer questions, misunderstandings and irritation it will cause among employees (Example 1).

WORKERS ARE NOT NOTIFIED ABOUT REDUCTION OR ARE NOTIFIED WITH VIOLATIONS

An important nuance is that absolutely all laid-off employees must be notified of the layoff and on time.

According to part two of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn employees in writing, against signature, about their layoff at least two months before dismissal.

If the employee refuses to read the notice or sign for familiarization with it, then the employer will have to read the notice to the employee out loud and draw up a report in which two or three employees who were present during the familiarization must sign (Example 2).

However, there are exceptions to the employee notice period.

Several days' notice.

For example, if a fixed-term employment contract is concluded with an employee for a period of up to two months, then he must be notified in writing of the layoff at least three calendar days in advance (part two of Art.

292 of the Labor Code of the Russian Federation). An employee who is employed in seasonal work should be notified in writing of the layoff at least seven calendar days in advance (part two of Article 296 of the Labor Code of the Russian Federation).

Notification in case of illness and vacation. If an employee needs to be notified of a layoff and he is on vacation or sick leave, it is better to wait until he returns to work and hand in the notification in person. But what if this is a remote worker or management demands that the employee be notified despite being on vacation?

In this case, you need to send a notice of layoff to all known addresses of the employee in a valuable letter with a list of attachments and a receipt receipt (Example 3). The date of notification is the date the employee receives the valuable letter.

If the employee is available by phone, it is worth calling him and telling him about the need to receive a notification. Moreover, this must be done over a loudspeaker and in front of witnesses. The conversation must be recorded in an act (Example 4). Such an act speaks of the employer’s good faith and confirms that he did everything possible to notify the employee of the layoff.

DO NOT OFFER ALL SUITABLE VACANCIES

If there are vacancies in the organization, they should be offered to the laid-off employee (if they suit him in terms of qualifications and health) as they appear within two months, while the notice period for dismissal due to layoff is valid (part three of Article 81 of the Labor Code of the Russian Federation) .

Often, courts reinstate employees precisely because they were not offered all the vacancies. The courts carefully check whether the positions in the staffing table and in job offers coincide (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court dated 02.02.2015 in case No. 33-949/2015, A-9).

It is necessary to offer not only positions that correspond to the employee’s qualifications, but also lower ones.

QUESTION ON THE TOPIC

Do I need to offer a vacant senior position?

Source: https://www.profiz.ru/sr/10_2017/sokrashchenie_shtata/

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.

What to do after receiving notice of layoff?

Do nothing in the first minutes or even hours. Any legal documents must be taken into account with a calm mind.

• Read the redundancy notice carefully. Pay attention to the dates, bank details, and the presence of the manager’s signature.
• Read the list of vacant positions that you can apply for in the event of a layoff. It must also be certified by the signature of the head of the enterprise.
• Find out whether the trade union committee agrees to the reduction.
• Sign the documents and work quietly for another 2 months, if you agree and do not belong to one of the following categories of citizens: pregnant woman;
• a woman (or other person) raising a child under 3 years of age;
• a single parent (or other person) raising a child under 14 years of age, or up to 18 years of age if the child is disabled;
• the only breadwinner in a family with 3 or more children.

You can agree in writing to the administration's proposal for early dismissal. In this case, you are paid the average salary for the remaining period and all other money due for reduction.

If an employee refuses the offered vacancies

All aspects that accompany the downsizing process are documented in writing. If an employee is not satisfied with the proposed vacancies for some reason, he refuses them. Such refusal must be made in writing. It is drawn up in the form of an application .

Such a refusal cannot entail negative consequences for the employee. In the event that none of the vacancies satisfy the employee, he will be dismissed due to reduction within the period established by the notice. In this case, the employee will receive all payments due to him.

It should also be taken into account that the employer can set a deadline for obtaining a refusal from the employee. If a written response is not received within this period, then the employer has the right to hire another employee for the vacant position.

Is it possible not to sign a notice of staff reduction?

Yes, you can. The countdown will begin only from the moment you sign the notice of reduction. If the document does not contain the signature of the manager or the date of review, it cannot be signed.

Also, if you do not agree with the actions of management or belong to one of the categories of citizens listed above, you can, without signing any document, file a claim with the labor dispute commission.

The employer may ask you to state in writing your reasons for refusing to sign the documents. Write explanations in two copies , have your copy certified by the secretary. This document can also testify in court, both in your favor and in favor of the head of the enterprise.

But you can refuse these actions. If you again do not agree, the administration has the right, in the presence of witnesses, to draw up an act reflecting the fact of the warning about the reduction and your refusal to sign.

If the labor dispute commission decides the case is not in your favor, the countdown of 2 months of revision will begin from the day the act is drawn up. Next, the employee has the right to appeal to the people's court ( Article 201 of the Labor Code of the Russian Federation ).

Offer of vacant and temporary positions

In the proposed notice, the person must record his acceptance or refusal of the position. If either party subsequently has any complaints, a written form of consent or refusal will serve as evidence of compliance with legal regulations. The employee is offered the following vacancies:

• When informing an employee about a planned layoff.
• As new vacancies become available prior to the employee's termination date.
• On the last working day before termination of the contract.

If the employee is on a period of incapacity or vacation at the time the vacancy opens, the employer may send notice by mail or courier.