Dismissal of a pensioner: how not to break the law - Lawyer user832022

Age is not a reason to quit

A person who has reached a certain age has the right to stop working and retire. But the legislation of the Russian Federation also does not prohibit such elderly people from working. Especially if they are full of strength and can fully cope with their work responsibilities.

Despite the fact that due to the pension reform of 2021, the retirement age has been increased (for men - 65 years, for women - 60), it has not become a reason for dismissal. And if the manager nevertheless forced an older employee to terminate the employment relationship without justified reasons, this will be regarded as age discrimination. In such cases, employers are in for big trouble. How to fire a pensioner without violating his rights and legislation?

Who is recognized as such an employee in the Russian Federation?

Pre-retirement, in accordance with Art. 5 of the Law of the Russian Federation No. 1031-1 “On Employment of the Population in the Russian Federation” employees who have 5 years left are recognized:

before the appointment of an old-age pension;
or before the appointment of an early pension for long service.

Since in 2021 there is still a gradual increase in the retirement age (by 0.5 months, from 2021 - by 1.5 years, etc.) by 2023 from 55 (women) and 60 years (men) to 60 and 65 years respectively, retirement is possible at 55.5 and 60.5 years. Then, women who have reached 50.5 years of age and men who have reached 55.5 years of age will be considered pre-retirement in 2021.

If we are talking about employees who have the right to retire early, then five years are subtracted from the threshold (for example, for teachers, the length of service is set at 25 years, so pre-retirement age will begin after he has worked in an educational institution for 20 years).

Is it possible to fire a pre-retirement employee?

If only because he has reached a certain age, then he cannot be fired. And in this matter, the legislation came to the protection of workers, introducing liability for organization managers for unjustified termination of an employment contract.

At the same time, it is impossible to talk about a ban on dismissal at the initiative of the employer, as is established in relation to pregnant employees.

The legislative framework

All situations related to employment and termination of an employment contract are regulated by the Labor Code and adopted regulations:

Federal Law No. 400 dated December 28, 2013 “On insurance pensions”;
Federal Law of December 17, 2001 No. 173 “On labor pensions in the Russian Federation”;
Art. 77, 78, 80, 81 Labor Code of the Russian Federation.

Fixed-term contracts, which are regulated by Art. 59 Labor Code of the Russian Federation. According to the law, the period for concluding such an agreement is limited to 5 years. It is convenient for the employer, as it allows the working relationship to end on time and does not require payment of severance pay. But a fixed-term contract can only be concluded with the consent of the candidate.

Possible reasons

Do they have the right to fire a pre-retirement employee and for what reasons? Termination of an employment contract can only be carried out on the grounds listed in labor legislation.

At your own request

If a pre-retirement employee quit of his own free will, then no problems with the procedure should arise. Dismissal on the specified basis is carried out in accordance with the general procedure (Article 80 of the Labor Code of the Russian Federation):

the employee submits an application, which is registered by the human resources department, the manager himself or his secretary;
works the required 2 weeks (or other period established by law);
The HR department prepares the work book and personal file, and the accounting department makes the calculations.

If the employer refuses to accept the application , the pre-retirement employee should proceed as follows:

send an application by registered mail with a list of investments, thereby confirming the fact of your desire to resign;
contact the labor inspectorate;
stop working on the day specified in the application.

By abbreviation

In accordance with the “Review of Current Issues...” from Rostrud, published in February 2021, pre-retirees are not included in the list of employees who have immunity from dismissal due to reduction, which means the procedure is carried out in the general manner , as described above (2 months notice , offer of another position, etc.).

Other grounds

Pre-retirees may also be fired:

by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
in connection with the expiration of a fixed-term contract (Article 79 of the Labor Code of the Russian Federation);
upon liquidation of an organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation);
for official inconsistency (clause 3, part 1, article 81 of the Labor Code of the Russian Federation);
in connection with violation of labor discipline (clauses 5-8, part 1, article 81 of the Labor Code of the Russian Federation).

The dismissal procedure is carried out in accordance with the general procedure established for each of the grounds.

Rights of a working pensioner

According to the Labor Code, working pensioners have the same rights as other workers. And in some cases they even have advantages:

a WWII veteran, if he works, can choose a convenient time for vacation;
an elderly employee can take additional unpaid leave of up to 14 days;
exempt from paying property tax;
have preferences when issuing vouchers to holiday homes or sanatoriums;
upon dismissal due to retirement, they have the right not to work the required two weeks.

Dismissal of a pensioner at his own request

The easiest way to fire a pensioner is if he writes a statement of his own free will.

The legislation does not establish a time period between obtaining the right to receive a pension and the voluntary dismissal of a working pensioner. The employee can write an application immediately after receiving the right to pension payments or remain working as long as he considers possible.

The dismissal process in this case is no different from other employees, with one exception. We have already written about it above: if an employee receiving an old-age pension quits for this reason for the first time, he may not work the required two weeks.

First of all, a statement must be drawn up, which indicates:

FULL NAME. employer;
personal data and position of the resigning person;
the text of the statement itself;
date and signature.

Sample application for voluntary resignation

After the manager has received the application, he can proceed to issue the order. It is drawn up according to the T-8 form approved by the State Statistics Committee.

The order states:

name of the organization, OKPO code, order number, date of issue;
the date of termination of the employment contract and the number under which it is listed in the internal archives of the organization;
FULL NAME. the retiring pensioner and his position, personnel number;
grounds for termination of an employment contract. To avoid an offense, this line indicates that the basis was the employee’s own desire to resign due to retirement;
the employer’s position, his signature with a transcript and the signature with a transcript of the employee, confirming that he is familiar with the document.

After issuing the order, the manager must give the resigning employee a full payment, including mandatory payments and additional ones.

At the same time, a work book is drawn up, in which the date, reasons for dismissal, order number and date of issue are entered.

After completing all the necessary papers, they are handed over to the former employee. Who, in turn, must sign the journal for recording the movement of internal documents, confirming their receipt.

For financially responsible persons, everything is a little more complicated. The resignation letter must be submitted two weeks before the expected date of completion of work. An inventory must also be carried out and the accountable property must be transferred to the successor or employer.

When terminating an employment contract at his own request, the employer must pay:

wages for actual time worked;
compensation for unused vacation this year;
additional payments at the discretion of the employer.

Criminal liability measures

If a pre-retirement employee actually has evidence confirming that age is the reason for his dismissal or refusal of employment, then he can bring the unscrupulous employer to criminal liability. Video or audio recordings are usually used as evidence. Sometimes correspondence on social networks or by email is used to form an evidence base.

The main penalties for such a crime include:

a fine, the amount of which does not exceed 200 thousand rubles;
instead of a fixed payment, an amount equal to the income of the convicted person for a period of up to 18 months can be used;
compulsory work for 360 hours.

Reference! The exact punishment depends on the decision of the judge, who, before pronouncing a verdict, studies the received materials in detail, and also reveals the presence of malicious intent on the part of the owner of the enterprise.

Pre-pensioners include persons who have less than 5 years left before receiving an insurance pension from the state. It is difficult for such people to find a place of employment, and they also cannot choose professions that require high activity or physical effort. This is due to deteriorating health conditions.

Since the concept of “pre-retirement people” appeared in the legislation in 2008, formally from this period it is possible to punish unscrupulous employers. Those officials whose signatures are on a written refusal of employment or on a dismissal order are held liable:

general directors of the enterprise;
employees with special powers, which are specified in the job description or special order.

Important! Criminal prosecution is possible only if there is evidence that dismissal or refusal of employment is an unfounded action, therefore the main motive was the old age of the employee or applicant.

Dismissal of a pensioner by agreement of the parties

In this case, termination of the employment contract occurs at the initiative of both parties. The procedure is completed in the same way as when leaving at your own request. But with one exception. In this case, withdrawal of the application is practically impossible. Withdrawal of the application and return to work must also occur by mutual agreement.

Sometimes a manager offers a working pensioner to switch to an easier job that corresponds to the health status of the subordinate. The transfer must be carried out only with the consent of the employee.

Sample letter of resignation by agreement of the parties

Where to complain if a pre-retirement person is forced to leave on his own?

Law 144.1 of the UKRF on the dismissal of persons of pre-retirement age can be circumvented by unscrupulous company managers by forcing an older employee to leave of his own free will, or by signing a certain agreement. This can be persuasion, promises of mountains of gold, and even threats. But under no circumstances should you give in!

Important
By leaving the company of his own free will at pre-retirement age, a citizen will lose the right to benefits, early retirement and other payments that are due to a person being dismissed in the event of staff reduction or liquidation of the company. In addition, the collective agreement may contain a clause promising a good bonus if an older employee works until a well-deserved rest. Such examples are known.

Therefore, you need to stand your ground and not give a reason to dismiss on guilty grounds (don’t skip work, don’t be late, don’t drink alcohol at work, follow the plan, etc.). As a last resort, you can ask for another open vacancy, in which an older employee can hold out until his insurance pension.

This is also important to know:
Dismissal due to the death of an employee: sample order, date and wording, payments to relatives

If the employer continues to impose his will, you should send a written complaint to the labor inspectorate or immediately go to court. The same can be done if the employee became faint-hearted and quit on his own, thereby fulfilling the management’s requirement and leaving himself penniless.

Labor inspectorate employees will organize an appropriate inspection, order that the violation be eliminated, and ask the dismissed older citizen to file a claim with the district court for reinstatement at his previous job and compensation for forced absences and moral damages. However, it is worth remembering the statute of limitations. In such cases, it is only one month from the date on which the older worker was wrongfully fired. It may take too much time to contact the labor inspectorate and subsequent proceedings. Therefore, it is better to immediately go to court. There is no need to pay state duty on labor disputes.

Such cases are considered by the district courts at the location of the employer. You should stock up on evidence:

request a copy of the employment contract, the employer has no right to refuse. By law, he is obliged to certify and issue copies of any documents related to the work activity of the dismissed aged person;
take a salary certificate; on the basis of this paper, if the issue is resolved positively, the court will calculate the amount of compensation due;
attach other papers to the application: copies of the work record book, orders for enrollment and termination of the employment contract, etc.;
if there is evidence of forced dismissal of an older worker, this is also necessary (audio and video recordings of conversations with the manager, witness testimony, etc.).

The plaintiff may petition to subpoena witnesses if the evidence of unlawful dismissal attached to the application is insufficient. He also has other rights:

he has the right to change the requirements contained in the filed claim;
demand compensation for attorney's fees from the employer;
change the amount of compensation up or down;
renounce the claims, change the subject of the claim and its grounds.

Often the parties come to an amicable agreement. However, before agreeing, it should be remembered that after its conclusion, it will be impossible to subsequently present anything to the employer on the same basis. The settlement is certified by the judge, and it comes into force immediately. To reinstate a dismissed older citizen in his previous place, the company administration must:

draw up an order to cancel the dismissal order based on a court ruling;
familiarize the pre-retirement person with the “rehabilitating” order, the reinstated person signs it;
indicate in the work book the invalidity of the previous dismissal record, indicating the details of the order and the date of its signing.

Did the court find the groundless dismissal of a pre-retirement employee unlawful? A justified employee may demand to change the very wording on which he was fired. Let’s say if they got rid of him under an article that puts a heavy blot on his immaculate work reputation - they say, he is a drunkard, a thief, a truant, etc. If all this was a slander, and the court recognized the illegality of the wording, the manager will have to:

issue a rehabilitative order and notify the employee about it;
enter into the labor record the invalidity of the previous wording;
issue a certified copy of the order changing the wording of the reasons for the dismissal of the employee if he has already gotten a job in another organization and cannot provide his work book to correct the entry directly in it.

There are cases where an older employee was illegally fired, he goes to court, and his company is liquidated. Given this turn of events, it will no longer be possible to reinstate a dismissed elderly citizen to his previous position. But the court, having recognized the illegality of termination of the employment agreement, may well oblige the organization that has become the legal successor of the liquidated company to compensate the pre-retirement worker for forced absences.

The court decision becomes executed when the employer has paid all compensation and covered moral damages, hired an older person dismissed back to the same position, and fulfilled all other court orders. Otherwise, he will be prosecuted under the administrative code, and now under criminal article 141.1.

Reinstating your job after successfully challenging the illegal termination of employment with an older employee is theoretically not that difficult. However, in reality, everything can drag on for many months. Nobody needs this red tape. Therefore, it is better not to lead to litigation, but at the moment when the employer begins to force dismissal, write a complaint to the labor inspectorate. She will send an audit that will determine the legality of the employer’s actions and will not allow the problem to escalate into a lengthy trial.

Dismissal of a pensioner due to insufficient qualifications

This is not an easy option and quite labor-intensive. The Labor Code allows the termination of a working relationship due to an employee’s inadequacy for the position held based on the results of the certification (clause 3 of Article 81). To take advantage of this opportunity to terminate a contract with an employee, you must:

conduct recertification for compliance with the qualifications of the position held;
receive a negative conclusion about the pensioner’s qualifications based on the results of certification;
establish the absence of a vacancy for transfer or receive an employee’s refusal to transfer to another position.

A written refusal of the pensioner to transfer to another vacancy, if any, is required in this case.

Dismissal of a pensioner due to staff reduction

This option is financially expensive. An employee who has reached retirement age can be dismissed due to a reduction in the number of employees. The presence of pension rights does not provide any benefits to the employee, and the termination of the working relationship takes place in the general manner:

Order to reduce staff.
Two months notice about job reduction.
Offering available vacancies when available.
Written consent to transfer to another position or written refusal to transfer.
Order of dismissal.

In this case, the employer must comply with certain rules:

the pensioner must be notified of the layoff at least two months in advance;
issue an official order;
make payments and issue all documents on the due date.

But since the procedure for dismissing a pensioner due to staff reduction is no different from dismissing other employees for this reason, the employer must first offer the pensioner another vacancy existing in the company. If the elderly person agrees to switch to it, then the transfer process is carried out. And only in case of refusal the employment contract is terminated.

Also, on the last working day, a full settlement with the employee must be made and all documents must be issued.

Legislative regulation

Basic information about employment rules is contained in the Constitution and the Labor Code. If a person has reached the age of pre-retirement, then he can be fired only for legal reasons, which are listed in Art. 81 TK.

If a person is fired for a reason that is not provided for by law, then such a decision of the owner of the enterprise can be easily challenged in court. In this case, one must refer to the provisions of Art. 144.1. The court, having studied the case materials, decides to reinstate the specialist at the place of employment.

In addition to criminal liability, under Art. 234 and Art. 394 Labor Code, as well as under Art. 5.27 of the Code of Administrative Offenses provides for the following types of liability:

Material . For the entire period of forced absence, the citizen is assigned monetary compensation, the amount of which depends on average earnings. This even takes into account the period of delay in restoration at the place of employment. When drawing up a statement of claim, a citizen has the right to include information about moral compensation for harm caused by illegal termination of a contract, since loss of a job is often accompanied by moral or physical suffering.
Administrative . It is represented by a fine, which is imposed by the court after studying all the materials of a particular case.

According to the Constitution and the Labor Code, every citizen has the right to independently choose a place of employment, for which their own preferences, as well as existing knowledge and skills, are taken into account. At the same time, pre-retirees have not only equal rights with other employees, but also certain privileges guaranteed by the state. They cannot be fired illegally, and if they are laid off, they have a preferential right to remain in the company.

Payments upon dismissal of a pensioner due to staff reduction

When dismissal due to staff reduction, the calculation includes:

wage;
compensation for unused vacation;
a benefit in the amount of average monthly earnings (paid in the first and second months after the layoff, can be paid in certain cases for up to six months).

If the organization has other additional payments upon dismissal of a working pensioner, they are also added to the total amount.

Compensation upon dismissal in certain cases may be in the amount of 2 weeks' earnings. This applies to the following cases:

if the work was seasonal;
if the employee refuses to transfer to another organization by agreement between employers.

There are some small peculiarities when paying compensation for the dismissal of pensioners due to staff reduction in the Far North and equivalent territories. According to Article 318 of the Labor Code of the Russian Federation, dismissed employees are entitled to compensation in the amount of salary for the period of employment, but not more than six months.

Labor rights of workers of pre-retirement age

So, if you belong to this category of citizens, then it will be useful to know about your rights:

1. the right to additional days for medical examination. The employer is obliged to provide two working days, which are paid based on average earnings, for the opportunity to undergo medical examination. The legislation does not establish specific dates; they are agreed with the employer. To exercise this right, you need to write an application:

To the director of the MDOU Ekaterinburg V.S. Petrova from the teacher-methodologist of the MDOU of Yekaterinburg Vasilyeva V.G. Born 01/10/1965

STATEMENT

In accordance with Part 1 of Art. 185.1 of the Labor Code of the Russian Federation, I ask you to release me from work to undergo medical examination for 2 working days on February 20 and 21, 2021.

02/10/2019, signature

As a general rule, medical examinations are carried out once every two years, in some cases – annually (for example, in relation to workers who are disabled in combat). The law does not oblige the employee to be sent for medical examination. The employee undergoes such a medical examination voluntarily, turning to the employer with a statement, an example of which we presented above.

2. the right to receive unemployment benefits in the amount of up to 11,280 rubles for one year. From January 1, 2021, those persons of pre-retirement age who registered with the employment center and were declared unemployed have the right to receive increased benefits for one year (for other categories of citizens, the benefit is up to 8,000 rubles).

3. the right to retraining and attending advanced training courses. The cost of additional training will be reimbursed to the employer from the budget. The federal program is already being successfully implemented in the regions; the Government of the Russian Federation has allocated more than 5 billion rubles for it. lost the right to receive benefits due to the expiration of the payment period, the payment of benefits is extended for a period of no more than three months, but no later than October 1, 2021. During 2019-2020, many regional authorities developed and applied standard recommendations of the Ministry of Labor for training opportunities for people who have 5 or less years left until retirement. This guarantees compliance with the law.

The program should work something like this: those employers who will participate in the program will be compensated for the costs of training such citizens at the expense of the state. Compensation will only occur if certain conditions are met:

training has been completed in full (if the training is not completed, the cost will not be reimbursed);
protection from dismissal - pre-retirees who have completed training will not be fired this year (exception - at their own request);
one pre-retirement student studied once.

Control over the implementation of the vocational training program will be entrusted to the employment service, with which the employer who wishes to organize additional courses will enter into an agreement.

In addition to the listed opportunities, pre-retirees can count on protection from unjustified dismissal due to staff reduction and on a number of other grounds.

Can a pensioner be fired for health reasons?

Dismissal for health reasons of a pensioner is possible only with a medical certificate. And in order to send a person for a medical examination, he must work in positions or jobs, the list of which is included in the Order of the Ministry of Health and Social Development dated April 12, 2011 No. 302n.

Passing medical examinations at the direction of the employer is the employee’s responsibility (Article 214 of the Labor Code of the Russian Federation). If there are health problems, which is often at retirement age, the medical commission can issue the following types of conclusions:

establish the pensioner’s total incapacity for work;
recognize the employee as needing lighter work for a period of less than 4 months;
recognize an employee as needing lighter work for a period of more than 4 months.

If the medical commission recognizes the employee as completely disabled, then the reason for separation from the employee will be the grounds specified in paragraph 5 of part 1 of Article 83 of the Labor Code of the Russian Federation.

How can you fire a pensioner if the medical board recognizes him as needing easier work? In this case, if the employee needs a permanent transfer or transfer to another job for a period of more than 4 months (if the pensioner himself refuses such a transfer), then dismissal will be made under clause 8 of part 1 of Article 77 of the Labor Code of the Russian Federation. This can only be done if there are no suitable vacancies or, as already mentioned, if the transfer is refused. Before issuing a dismissal order, you should draw up a notice of termination of the contract due to the lack of vacancies corresponding to the state of health, and obtain the employee’s signature. In this case, the pensioner receives a compensation payment in the amount of two weeks’ average earnings (see Article 178 of the Labor Code of the Russian Federation).

Blog about taxes by Vladimir Turov

Good afternoon, dear businessmen.

This information is probably not new for you: we will talk about the possible punishment of businessmen for dismissing an employee of pre-retirement age.

A new article of the Criminal Code has come into force: Article 144.1 of the Criminal Code of the Russian Federation “Unreasonable refusal to hire or unjustified dismissal of a person who has reached pre-retirement age . I quote: “An unjustified refusal to hire a person on the grounds that he has reached pre-retirement age, as well as an unjustified dismissal of such a person from work for the same reasons -

shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a period of up to three hundred and sixty hours.

Note. For the purposes of this article, pre-retirement age means the age period of up to five years preceding the appointment of an old-age insurance pension to a person in accordance with the pension legislation of the Russian Federation.”

It would seem like nothing special: a fine of 200,000 rubles or 1.5 years’ salary, or compulsory work for up to 360 hours. But this is a criminal record, this is a criminal article. And the minus of this article is in the wording: “An unjustified refusal to hire a person on the grounds that he has reached pre-retirement age, as well as an unjustified dismissal of such a person from work for the same reasons.” What does “unreasonable refusal” mean? What should this refusal be? How to justify this refusal so that it is really true?

I do not consider myself a great specialist in the field of labor law. Maybe among you there will be those who will complement or correct me. I will give some tips on how to avoid getting into trouble with an unreasonable refusal to hire or an unjustified dismissal of a person who has reached retirement age. So what should you do?

Create an attestation commission

There is no need to part with an employee just because he has reached pre-retirement age. People approaching retirement age often work more efficiently than younger people. They take their work more seriously, especially if they continue to study, etc. And, of course, if they don’t get sick for six months.

In this regard, certification commissions have always helped me. My company has an official regulation on the certification commission. As a rule, we evaluate employees once every six months, sometimes once a year: this is an absolutely official certification for professionalism. We double-check the professional qualities of our employees. Accordingly, we are preparing an order for certification, creating a certification commission, and developing certification questions. As part of the commission, I am involved in the certification of directors. Every employee and every manager takes a written exam, and in the presence of the certification commission, an oral exam. We do our best to ensure that our assessments are completely objective without any nitpicking. Based on the results of the certification, the commission issues grades. For example, if an employee scores more than 80% of correct answers, then he has confirmed his qualifications. Also, based on the results of certification, an employee can be promoted or demoted or transferred to another position. And, of course, if a person fails the certification, he can be fired. But certification is not enough.

Establish quality control

In order to fire a person, according to the Labor Code of the Russian Federation, he either must have corresponding violations, or the person must not have the required level of production of a service or product. It would be great if unprofessionalism was confirmed not only by certification results, but also by some criteria for assessing the quality of his work. My company has developed precise criteria that are measured in numbers. Therefore, if you want to fire a person of pre-retirement age, you need to carry out the steps described above.

Correctly formalize your dismissal

Of course, if an employee grossly violated the Labor Code of the Russian Federation (came to work drunk, systematically does not go to work, violates labor discipline, etc.), then you need to give a severe reprimand, be sure to draw up explanatory acts, issue an order in which the employee must sign . Your HR person should know how to complete these documents.

Record the process and results of the interview

As for an unreasonable refusal to hire, I recommend writing down the results of the interview: what questions did you ask the candidate of pre-retirement age, how did he answer these questions. Even to the point of installing a video camera at the interview. In this way, you evaluate the candidate from a professional point of view and give him an appropriate refusal.

If you say: “My team only employs people under 35,” this is, naturally, popandos. Prepare to lose your salary for the past 1.5 years, or pay a fine of 200,000 rubles, or work 360 hours of compulsory work...

I hope you found this article helpful: please like it and share it with your colleagues. Subscribe to my blog: I always tell the truth, because this truth is based on the legislation of the Russian Federation.

Good luck with business.

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Vladimir Turov

Head of legal practice, practicing and leading specialist in tax planning, building individual tax schemes and holdings, optimizing financial flows.