Dismissal due to staff reduction. Nuances

This method of terminating an employment contract stands out especially among others. It can rightfully be called one of the most protecting the rights of the employee, not the employer. Although this option is the most time consuming.

What the law says

Clearly articulate the differences between downsizing and staff cuts the law does not.

In practical application, there is only one difference: when the number of employees is reduced, the position is not excluded from the staffing table, only the number of persons occupying it changes (there were 5 managers, 2 will remain).

And if the staff is reduced, then the position is removed from the schedule altogether (for example, the position of an accountant for materials is excluded, his duties will be performed by a salary accountant).

Making changes to the staffing table

It is possible to reduce employees only when the position is already absent in staffing table... Thus, you can make changes to the existing schedule, or develop another, taking into account all the changes.

The new version of the schedule is approved by the relevant decree, which also explains why there was a need for the reduction, at what time it will be carried out.

All employees of the company or enterprise must be familiar with this order.

Categories of persons who cannot be reduced

Reduction in the number of employees or staff - it is entirely the initiative of the management of a company or enterprise. At the same time, there are benefits for certain categories of employees. We will discuss this in more detail below.

In general, with a reduction, a certain rule applies, which is reflected in the legislation: first of all, those employees who have less qualifications and low indicators of labor efficiency are fired. In practice, these are most often employees with the least work experience.

The following employees have the advantage of staying at work:

Parents of disabled children;
Single mothers;
Single Fathers;
Who are the only breadwinners in the family;
Injured or prof. diseases in this particular workplace;
Persons with disabilities in wars;
Heroes of Russia and the Soviet Union;
Victims of the Chernobyl disaster;
Victims of trials in Semipalatinsk;
Undergoing the training to which they were directed by the organization;
Employees who patented inventions (here the legislation of the USSR applies);
Trade union leaders;
Representatives of the collective elected by voting who take part in the resolution conflict situations with guidance.

So, it is unacceptable to dismiss by reduction:

Persons;
The employee with whom the sick leave;
Women who have children under 3 years of age.

This list is not exhaustive, the full is given in the legislation.

Reasons for layoffs

The law does not directly establish the reasons for dismissal due to redundancy. It is the employer's right to make a reduction if the economic conditions that require it have arisen. But if a dispute arises, the court has the right to check how weighty the reasons were, whether the reduction was justified.

Typically, serious circumstances include:

Inability to pay wages to a large staff of workers;
There are positions on the staff that are currently not required;
The production technology is changing, and therefore some of the employees will not be in demand.

Conditions for dismissal

Their observance concerns, first of all, the employer, if he does not want to pay fines and compensations to illegally dismissed employees in the future.

The reduction procedure must be followed strictly. Any deviation from it will entail a lot of negative consequences;
Dismissal must be justified, and the court has the right to verify this;
The employment service must be informed without fail. Employers who ignore this condition often have to pay the laid-off employees for forced absenteeism, already by court order.

Reduction procedure and procedure

Dismissals are made in the following order:

The company's management issues an order on what is planned to be cut. Moreover, not less than 2 months before the dismissal of workers. Each employee is warned about this personally, and gets acquainted with the order against signature;
Employees who are laid off should be offered other positions that match their qualifications. It is worth considering that this is done not once, but throughout the entire period before termination;
The trade union organization must be notified if it operates in the company. If the dismissal is massive, then reduction notice sent to a trade union in 3 months, as required by the Constitutional Court of the Russian Federation;
In addition to the trade union organization, the employer also warns the employment service;
If the employee does not agree to any of the proposed vacancies, a staff reduction order is issued. The employee's refusal must be made in writing and signed by the employee;
With the consent of the employee, he can be dismissed before the expiration of the two-month period.

Employee's rights in downsizing

Many people are poorly guided by the legislation, which sometimes becomes convenient for unscrupulous employers. Taking advantage of this situation, they often violate the rights of employees and do not do everything due payments... To prevent this from happening, it is worth considering this item in more detail.

What does the employee have the right guaranteed to him by law:

Severance pay in the amount of average monthly earnings;
To preserve this earnings until a new job is found (there is a time limit);
For compensation provided for by an employment or collective agreement.

From the examples given, it is clear that the state protects citizens from layoffs at the whim of the leadership, makes it possible to challenge the dismissal in court if it is illegal.

How are redundancy payments made

Table 1. Payment procedure

What to do if payments are incomplete

Important information : any delay in payments is a violation of the law!

If this procedure has been violated, any employee can go to court, demanding:

Compensation for vacations that have not been used;
For sick leave that was not paid;
For moral experiences;
Compensation for expenses incurred when contacting a lawyer;
All% that are due for delayed payments.

At the same time, you can contact the prosecutor's office. Usually, frightened employers pay everything. If this happens, your claim can be waived.

The limitation period for contacting these bodies is 3 months from the date of dismissal.

In any case, you need to carefully study your rights and learn how to protect them.

How to quit is more profitable: by reduction or by agreement of the parties

Let's spend a small comparative analysis two types of dismissal. Since quite often employees ask such a question to specialists, it is worth paying attention to its consideration. And the results are presented in the form of a table.

table 2.Comparative analysis of types of dismissal

How profitable it is to quit, everyone decides for himself. You can rely on the criteria given in the table, you can ignore them. In any case, you need to focus on the situation that has developed in a particular person.

Employers' mistakes

Pressure on an employee to force him or her to quit. on their own... Usually dictated by a reluctance to make payments due by law;
Dismissal of an employee who is included in the preferential category (the categories are discussed above);
Lack of agreement on the downsizing procedure with the trade union (if any);
Abbreviation without written notice.

V this list the most typical and frequently encountered errors are given. Some of them are interpreted by the legislator as illegal dismissal and have serious legal consequences for an irresponsible employer.

Conclusion

Summing up, we can say that layoffs on staff reductions can affect anyone. Nobody is safe from this, especially if the economic situation is difficult on a national scale.

In such a situation, it is important to know your rights and make sure that they are not violated. And if certain difficulties arise, seek help from competent specialists.

During the implementation of a number of measures to reduce staff or the number of employees, many issues may arise that need to be resolved in accordance with the procedure and conditions for dismissing employees. The most common questions are: how is an employee dismissed in connection with a job cut? How and what are the payments made? What is the role of elected trade union bodies?

Dismissal of an employee due to job cuts occurs in a certain order

Indeed, dismissal due to job cuts is a complex process that occurs in a specific order. So, the main issues of staff reduction and staff release.

Who determines the size of the staff and the structure of the organization?

According to general rules, the staff and structure of the firm are determined by the organization itself. Therefore, the staffing table can often change depending on the wishes of the manager, the need to cut costs or increase profits.

When resolving claims for the reinstatement of employees with whom the employment contract was terminated due to changes in the staffing table, the reasons for the reduction of the position are found out in court.

The same applies to whether the downsizing procedure was followed. Otherwise, the employee has the right to sue the employer.

The fact that the procedure for reducing the position was carried out in accordance with all the rules will be confirmed by the relevant documents:

orders of the chief)
orders)
TD termination notice)
extracts from the staffing table)
documents on the reduction of the payroll.

These data will allow the court to figure out whether the staff reduction actually took place and what opportunities were provided to employees (vacancies or transfers, generous compensation payments, etc.).

Who is the first to be fired in the event of a layoff?

When a decision is made to reduce the number or staff of employees, before getting to working people, it is necessary to eliminate vacancies... Only then can the reduction be made at the expense of employees.

It should be noted that the candidacies of employees to be dismissed for reasons of downsizing are determined by the administration with the participation of the trade union. The rules for dismissing an employee from office must be carried out exactly in accordance with the legislation and the Labor Code of the Russian Federation. Each candidate must be considered separately. In this case, the opinion of the structural unit in which the employee works should be taken into account. Not everyone has a priority to stay at work

According to Article 34 of the Labor Code, they are left at work when the number of workers with higher qualifications and labor productivity is reduced.

Business and personal qualities... The right to evaluate business qualities employees are provided to the head of the organization. At the same time, various information is taken into account that characterize them both from the professional and personal side:

documents indicating education,
data on work experience,
work experience in this specialty,
quality of performance of official obligations,
belonging to a certain qualification group,
incentives, awards, etc.

Also, the manager has the right to appoint a human resources specialist to assess employees. This will allow an unbiased judgment of employees and make choices in terms of professionalism rather than personal preference. So, the priority is given to the following categories of workers:

employees with a family)
persons with dependents)
family breadwinners)
employees with extensive work experience in this organization)
workers with work-related injuries received in this production)
employees improving their qualifications and working at the same time)
invalids of the Second World War)
inventors)
family members of military personnel)
people who have suffered from radiation sickness (victims of the Chernobyl accident).

These categories of people who have a pre-emptive right not to be dismissed in case of redundancy are absolutely equal. The state does not provide for other categories of beneficiaries. However, if the beneficiary fits into several categories, he has more reasons to stay at work than others.

According to article 40, part 2 of the Labor Code of the Russian Federation, during the release of employees due to staff reductions, the benefits provided by the collective agreement, if any, may be taken into account. It should be noted that this right can be exercised after the administration has considered all preferences for staying at work.

The reduction of posts is carried out in order to optimize the work of the organization and more rational staffing of qualified personnel. That is why the administration tries to select the best workers to keep them in the organization.

If there are grounds for reducing the position and the order is signed, valuable employee can be transferred to another vacant position. So, according to the decision of the Supreme Court of the Russian Federation, the administration, in the event of measures to reduce the staff, can carry out the reshuffle of employees within homogeneous positions in order to leave a more qualified specialist to work. However, since 1998, there has been a law according to which it is impossible to dismiss an employee on reduction if his position is retained in the staffing table.

Who is forbidden to fire?

The Labor Code considers job layoffs to be completely legal. However, it should be noted that not all employees can easily be fired. Thus, pregnant women, as well as employees with children under three years of age, cannot be considered candidates for dismissal. Employees with disabled children, single mothers with young children are also not subject to dismissal. Some other categories of employees cannot be dismissed in accordance with Article 170 of the Labor Code of the Russian Federation. It does not matter whether these persons are on vacation or work during the period of the downsizing.

The exception is the complete cessation of the existence of the company. In this case, all employees are subject to dismissal, regardless of the availability of privileges and rights.

Dismissal as a result of a reduction in the number of employees or staff can be carried out if the employee to be dismissed does not have the advantage of being retained in the position in comparison with other employees, with the same labor productivity and qualifications. Also, an employee is subject to dismissal if he is laid off, if he cannot be provided with an alternative place of work.

Translation or employment opportunities

After the candidates for layoff have been considered, the list of employees to be laid off is drawn up, the administration must offer the employee to take another vacant position in case of layoff. According to article 40 of the Labor Code of the Russian Federation, the employee must be offered another job simultaneously with the notification of falling under the layoff and the upcoming dismissal. Also, no later than a couple of months in advance, the administration is obliged to inform the employment service about the dismissal of employees. In this case, it is necessary to submit data for each employee, indicating:

specialty,
profession,
qualifications,
position held,
the amount of payment.

Simultaneously with the employment center, it is necessary to notify the trade union of the mass layoff.

The form of the order to reduce the position must be prepared. After that, all employees should be notified by placing an announcement on the stand. Regardless of whether workers are laid off or not, they must be aware of the forthcoming layoffs.

Each employee is individually warned against signature about the upcoming dismissal two months earlier. In case of refusal to sign a paper with a warning, the boss or the administration draws up an act with the signatures of witnesses, which will record and confirm that the employee is familiar with the document.

The administration can notify the employee about the upcoming payment during his illness or vacation, however, the employee can be fired only after he returns to work. After the warning of dismissal, the specialist is obliged to work for the remaining two months in compliance with all the rules internal regulations... In case of violations labor discipline an employee may be dismissed earlier on an article “unfavorable” for his future career.

The terms of the notice of dismissal are set in the interests of the employee, so he can apply to the administration to shorten the term if he found another job and wants to start performing his new duties. If the administration does not insist that the employee continue to perform his duties, he can be calculated ahead of time upon application with the provision of all guarantees and compensation payments.

It should be noted that a statement with a request for early dismissal must be drawn up correctly. Otherwise, the employee may be fired "of his own free will" and deprived of all the privileges that are due to him.

If the dismissal of an employee on vacation falls on the day of his absence, then he may be dismissed later, when he arrives at work at the end of the sick leave or health leave.

Dismissal on reduction of position

If the available positions are not offered upon dismissal, it is imperative to draw up an act indicating the absence of alternative vacancies. Otherwise, the employee may challenge the legality of his dismissal in court. It is also necessary, if possible, to provide a transfer to another city for a similar job or offer all available vacancies, including those that are below qualification level employee or have a lower pay.

Only after the employee refuses to take advantage of the boss's suggestions, it should be calculated. It should also be noted that all vacant positions should be submitted to the employee for consideration in order to avoid problems in the future.

The most optimal option for dismissal in case of redundancy is transfer to another place. When the position is reduced, the conditions of dismissal do not allow leaving the employee, since otherwise he will have to take the place of another person, which is not legitimate. Although earlier the law provided that the administration could leave employees with the highest qualifications and labor productivity in the organization and form a staff from them, now these actions are illegitimate. Employees should be aware of all changes in the staffing table.

If there is no translation option

The rules for dismissing an employee from office must be carried out exactly in accordance with the legislation and the Labor Code of the Russian Federation

Dismissal under article 33 of the Labor Code of the Russian Federation is possible only if it is impossible to transfer or if the person does not agree to work in another place. The contract was concluded between the employee and the organization, so all vacancies should be offered that are available in the organization, and not only in the structural unit where the employee worked.

It should be noted that the employee has no right to demand any position that interests him in this organization. During the conclusion of the TD, he entered a job corresponding to his education and qualifications. Based on this, he can be offered a position corresponding to the qualifications.

In the absence of suitable vacancies, the administration is obliged to present the employee with a lower-paid job in his specialty. The management is obliged to select and offer positions to the dismissed employee during the entire period from the warning of the layoff to the day of calculation. If the case comes to court burdens, and it turns out that the administration did not offer the employee an existing suitable vacancy, the dismissal will not only be recognized as unlawful, but the organization itself will have to pay the plaintiff:

legal costs)
compensation for moral damage)
money that could have been his wages in an unsolicited position.

The role of the union

This body protects the rights of workers and monitors the legality of the actions of the administration in relation to him. Representatives of the trade union committee answer questions on the reduction of positions and dismissal for the reduction of staff, and also check whether the article under which the employment contract is terminated in these cases coincides.

An employee can be dismissed only with the permission of the trade union body. This rule applies to union members. This body does not have the authority in case of dismissal:

the head (head) of the organization or branch)
deputy chief)
senior staff)
elected workers)
persons approved or appointed state power(governing bodies) and public organizations.

If the trade union body does not allow the dismissal of the employee, then this decision is brought to the knowledge of the administration. Further, the trade union committee will consult with the company's management, as a result of which either the employee will be left at work, or the case will be decided in court.

Last day of work

On the day of dismissal, the manager is obliged to give the employee a work book. The dismissed must fill out forms, which will later be transferred to the archive. In the event of a delay in the issuance of labor due to the fault of the administration or the head, the employee will receive compensation in the amount of the average earnings for the time of "truancy", in accordance with Articles 39, 98, 99 of the Labor Code of the Russian Federation.

If undesirable consequences for the employee are associated with the delay in issuing the labor book (the employer's fault), he has the right to demand from the administration of the institution to change the date of dismissal. In case of refusal, the employee can go to court.

Compensation

What is paid upon dismissal to reduce the position? First of all, as in any case, layoffs must be paid calculated. They consist of the following components.

All guarantees and compensations are provided to the employee in accordance with applicable law. In this case, the reason for the reduction does not matter at all:

decrease in the number of employees)
staff reduction)
there was a reorganization as a result of a merger of firms or a merger of branches, etc.

In case of termination of the contract between the employee and the manager due to the reduction of the position, the employee is entitled to the following payments:

preservation of the average salary for the period of employment (no more than two months))
salary for the third month without work, in case of dissatisfaction with his request for a job search by the employment service)
other material compensation.

Payment of settlement money is carried out at the place of employment. It is provided upon presentation by an employee. work book... In order to receive material payments in the future, it is necessary to register with the employment service as temporarily unemployed. If the break in work has not exceeded three months, the employee retains the right to receive continuous work experience.

The form of notification of the reduction of the position is a mandatory element of any reduction

If the laid-off worker applied to the employment service on time, he can count on an extension of his work experience in the future, for the period of receiving a scholarship or unemployment benefit when performing paid public works.

Maintaining continuous work experience is important for a person who wants to find a job. In addition, it is this indicator that will determine the amount of payments in connection with unemployment. This can help in the future with remuneration (percentage allowances, lump sum remuneration for seniority, etc.).

If a dismissed employee, when contacting the employment service, was denied assistance, then he can be assigned an early retirement pension (only with his consent). It is appointed on the condition that the employee has the required length of service for retirement due to old age (this also includes receiving preferential payments as an increase to pension). The employee is guaranteed, even after dismissal, that the queue for housing and the opportunity for his family to use child care and medical institutions is guaranteed.

Allowed vacation or its material compensation

It should also be remembered that upon dismissal in connection with the reduction of the position, the employee has the right to spend the leave prescribed by law. If the director cannot provide the dismissed employee with leave, this will have to be settled financially. So, the first step is to provide compensation in the form of a material bonus corresponding to the amount of vacation pay.

During the vacation period, "wellness" allowances are accrued, so the employee can receive partial cash payments. It should be noted that dismissal implies unemployment in the future, therefore, material compensation in the amount of average wages within two months will also be provided.

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Step-by-step instructions for leaving work

For three months now I have not done anything and have been paid for it. For some it is a dream, for me it is a forced necessity.

Albina Khasanshina

got cut

In September 2017, 20 of my colleagues and I received written notifications about the upcoming layoffs. I heard that compensation is due for the reduction, but then I still did not know what.

I was not too lazy to figure it out, so for three months after the layoff at work, I was paid a full salary, and after that - unemployment benefits.

Everything according to the law

The developments in this article are based on legal abbreviation. This is not always the case.

Sometimes employers use layoffs to lay off employees without objective reasons... At the same time, they cut one position and come up with another - formally new, but with the same responsibilities. After that, they simply hire the employee they like best for her. For example, pregnant women, women on maternity leave, or single mothers are so often fired because they do not want to pay them maternity or hire temporary workers to replace them. This is illegal, and when it comes to court, the court usually takes the employee's side.

With a legal layoff of an employee, it also happens in different ways. If the employee received part of the earnings in an envelope, then after the reduction, the payments will be less than the salary. And if he was not registered in the state, then in case of reduction, they will simply say goodbye to him and will not pay anything.

These are all topics for individual articles. In my case, the salary was whiter than snow, and the department was actually cut. If this is not the case for you, then you will have to act differently.

How layoffs differ from layoffs

Downsizing is a process in which an employee is fired and their position is terminated. If during the usual dismissal of an employee, another specialist is hired, then with a reduction in the number of employees, this will not work.

My company closed an entire department and warned them about it two months before layoffs. A week before the layoff, eight colleagues were offered to transfer to a new department. Some employees are given the pre-emptive right to stay at work, and some cannot be fired at all, even if the staff is downsized. I was not one of them. Until November 20, I worked as usual and was preparing to be laid off.

Features of layoffs for reduction

There are also some special cases when it is impossible to lay off workers.

Workers on sick leave. You cannot cut a person whose sick leave is not closed.

Redundancy layoffs refer to layoffs initiated by the employer. It is prohibited to fire an employee during the period of his temporary incapacity for work on the initiative of the employer, except in cases where the organization is liquidated.

Workers on vacation. The same situation occurs when a person is on vacation. The employer does not have the right to dismiss employees on their own initiative during the vacation period.

Pensioners. The law does not establish special order reduction of pensioners. Therefore, the dismissal of a pensioner who has fallen under the layoff is drawn up according to the standard procedure: they issue an order for layoffs, check whether there are any prohibitions on layoffs or preemptive right stay in the state, notify the employee, the employment center and the union about the reduction, offer suitable vacancies before dismissal.

There is an important feature in relation to pre-retirees - people who are less than five years old before retirement. If the reduction is carried out in order to get rid of them, there is criminal liability: a fine or compulsory work.

Large or single mothers. There is no direct prohibition on the dismissal of a mother with many children or single mothers, but it is imperative to check whether a mother with many children has children under three years of age. And a single mother has children under 14 years old or a disabled child under 18 years old. In these cases, the employee cannot be laid off.

If the children are older, such employees have the right to preferential stay at work. For example, when a position is reduced, but such a position is not the only one in the department. If a mother with many children or a single mother has the same labor productivity and qualifications with other workers and, at the same time, there are two or more dependent children, she should be left.

Part-timers. There is no special procedure for reducing a part-time job. A person can combine positions in one organization or in different ones - this does not give him additional rights upon dismissal, but it does not mean that one of his positions must be cut in the first place.

Bypass sheet

A bypass sheet is a document that confirms that the company has no claims against the dismissed employee. When I got a job, the warehouse gave out furniture and overalls, the office - a computer, the system administrator created an account. To protect yourself from unnecessary spending and disclosure of commercial secrets, the employer prescribes in the employment contract that the employee is responsible for the condition of the property and the consequences of the dissemination of information.

The office and warehouse staff checked that I had not damaged the property, the IT department deleted the account, and the ID was taken from the pass bureau. Each employee put a receipt and signature on the bypass sheet. Then I took my work book.

On the day of dismissal, the personnel department makes an entry in the work book about the reason for the termination of the employment contract. In my case, it was “the reduction of the staff of the organization”. Under the record of the personnel officer, I signed that I was familiar with the order and agreed with the changes made to the work book.

Final settlement

On the day of dismissal, employees are paid a salary for the days worked in the current month, compensation for unused vacation and severance pay in the amount of average monthly earnings. Money is credited to the card in one amount.

To figure out how much and for what I was paid, I turned to the accounting department. I was given a payroll.

What was on the payroll

Salary

50 731 RUB

Severance pay

62,475 RUB

Compensation for 16 days of vacation

23 942 RUB

Surcharge for a harsh climate

3922 RUB

141,070 R

Together with the payroll, I immediately asked for three certificates.

Certificate 2-NDFL for the current year to receive a tax deduction for tuition, medical treatment or an apartment. A new employer also needs this certificate to see if a person has the right to standard deductions, for example, for children.

Certificate of salary for the last three months. You will need it when calculating benefits at the employment center.

After bookkeeping, I went to the local employment center.

Employment Center

The job center is a place where laid-off employees are helped to find work and not die of hunger while searching. It looks like this: after being fired, you register at the center, come every two weeks, get a list of vacancies, choose one or two from it and go for an interview. And so on until you find a new job.

As long as you do not miss visits and look for work in good faith, the job center makes sure that you receive compensation. If you are laid off, then your former employer pays them in the form of an average salary for the first three months. The state then pays unemployment benefits.

The employer issues the first compensation when calculating, the second - after two months, the third - after another month. You will receive the second and third compensation only if you have not yet found a job: formally, this means that there is no entry in the work book.

To receive compensation for the third month, you need to have time to register at the employment center within two weeks after the layoff. If you arrive after 14 days, the service will register the application, but according to the labor code, the employer cannot pay compensation for the third month. In addition, in order to receive the last part of the compensation, the employer needs to bring a certificate from the employment center about the decision to keep it for you.

The earnings for the third month are exceptional payments, the employer needs iron reasons for it. It is paid if the employee is the only breadwinner in the family or, for example, supports elderly parents.

Your supervisor will help you at the job center. When you come for the first time, he checks your documents, starts a dossier and offers the first vacancies.

To register at the employment center, take your passport, insurance certificate, TIN and diploma with you. If there is no diploma, any educational document will do. And also take a work book, a certificate from your previous place of work about the average earnings for the last three months and a card to which compensation will be transferred - you will be asked for its details.

Within 10 days after registration at the center, you will be assigned the status of an unemployed. From this moment, in addition to help in finding a job, you can consult on organizing your own business, participate in paid public works, ask for material assistance, apply for a pension early and undergo vocational training. All this is at the expense of the state.

If you start receiving any money other than unemployment benefits or compensation from your former employer, the employment center stops all payments and removes you from the register. It can be not only a new job, but also your own business, work under a civil law contract, study with a scholarship, a pension, and even public Works.

Payments will also stop if you miss your appointment without a valid reason. Good reason illness or death of relatives is considered. To prevent the employment center from removing you from the register, call your inspector immediately after the doctor, and at the next visit, bring him a sick leave or a copy of a death certificate.

If you get money for freelancing, payments will stop

The job center is your friend in trouble. If you no longer have trouble, there will always be someone who needs money more. If you try to deceive the center and do not say that you have started to work, he will find out about it upon a request from the Federal Tax Service and Pension Fund and the entire amount of benefits will have to be returned.

I registered at the employment center the day after I was fired. On the same day, the center took up my employment.

Vacancies

Everyone who is registered at the employment center is selected a job based on the level vocational training, conditions of the last place of work, health status and transport accessibility. The center's specialists also try to take into account the average salary at the last job, if it was higher than the subsistence level. A certificate from the accounting department with income for the last three months will come in handy here. If there are no suitable vacancies, and also if you are looking for a job for the first time or after a one-year break, the specialist will offer any paid option.

Every visit the inspector printed out for me new list vacancies. The journalist or correspondent for whom I worked earlier was not needed anywhere, and other vacancies did not appeal to me either. But I still had to choose some vacancies and go to interviews. As they explained to me at the employment center, if the dossier is empty, they will not give me a certificate and I will not receive the third average monthly salary from my former employer. I was advised to go to interviews at least once every month and a half.

Opposite the selected proposal, I put a tick and signed, after which I was given a referral for an interview.

Interviews

Within three days after you receive a referral, you need to go through an interview with a potential employer. The direction contains the name and address of the company, as well as the phone number and position of the employee with whom you will communicate. Based on the results of the interview, an employee of the company writes down his decision directly in the direction from the employment center. If it is negative, he explains the reason in the same place.

If the interview was successful, but you did not like the working conditions, then you also write the reason for the refusal in the direction. This can be, for example, a low salary, an inconvenient schedule, or a high workload. However, it is better not to abuse this: after two such refusals, the employment center will not issue a certificate or stop unemployment payments for three months.

The only situation when you can refuse to work and this will not affect your dossier in any way - if at your previous job you received more than the living wage, but at new job the salary is below this level.

I was offered a job in a telecommunications company, in a bank and in the MFC. But I don’t know how to sell, I didn’t work in state institutions and had no experience in the offered vacancies. Referrals with the reason for the refusal from the employer, date, signature and seal, I brought at the appointed visit to the employment center and handed over for the dossier.

In parallel with visiting the employment center and bypassing its vacancies, I was looking for work on my own - at Headhunter and in special channels in Telegram. I understood that the employment center would not find a job equal to the previous one, because there were no vacancies in the profession, and for the rest I did not have enough experience.

I recorded every response, phone call, letter and interview in a special plate - an individual plan for an independent job search.

Independent job search

An individual plan for an independent job search is a document that shows that a person is interested in getting a job as soon as possible and is actively searching. The plan assumes that the unemployed, in addition to the vacancies offered by the employment center, will go to other interviews.

It is not necessary to look for a job on your own, but the inspectors of the employment center strongly recommend this to anyone who wants to receive a third of the lay-off payment from a former employer.

The fact is that the certificate is issued by the lawyers of the employment center on the basis of the dossier. From the dossier, the lawyer should have the impression that you were actually looking for a job, and not checked in at the employment center for a tick. There are no formal criteria in the law according to which a lawyer must issue you this certificate, so the decision is at his discretion.

The favor of a lawyer can be achieved without an independent job search, only through referrals from the employment center. But if the offered vacancies do not suit you, and employers want to hire you, you will have to refuse them yourself. Because of this, the lawyer may decide that you do not need a job and will not issue a certificate.

Therefore, it is safer to look for a job yourself and record the results in an individual plan, and only go to those interviews from the employment center that you are really interested in or where the employer is likely to refuse you himself.

An individual plan is issued at the employment center. This is a table in which you need to record the date, stages of passage and the result of the interview.

An independent job search is not a substitute for routine visits to a job center. If you miss a visit, then even three completed individual plan sheets will not help and the unemployed person will be removed from the register.

Total: compensation from the employer

I did everything on time, so in three months I received 188,000 rubles from the employer.

A former employer paid me my first compensation in advance upon termination of employment. Two months later, I came to the accounting department for the second allowance. I took with me a work book, in which the accountant checked the absence of records about the new place of work.

A month later, before the last payment, I needed to get a certificate from the employment center. To do this, I brought to the center a completed individual plan for self-employment search.

188,000 RUB

in three months I received from my former employer as compensation

The specialist needed three directions from the center and four interviews from an independent search. I was referred to a lawyer who also checked that I had visited the employment center on time and had no income on the side. I was given a certificate, and I went to the accounting department to receive the last compensation.

My employer was responsible and did everything according to the law. The company cannot be blamed for the downsizing of its staff. Sometimes this helps to maintain solvency in front of other employees: pregnant women, the only breadwinners, large families. But there are companies that do not pay compensation in full and on time in the hope that employees do not know about payments and will not demand anything. Or there is such a mess in the company that there is no time for compensation. In this case, you need not wait, but demand your own: first politely, then in court.

I know of a case when an employee was laid off, and compensation was paid only for a month. He didn't know what was due for two more. And he would not have known if his wife had not figured it out herself. Then they wrote a polite letter to their former employer, but they were already mentally preparing for the trial. The letter was drawn up without a lawyer - they wrote it in their own words. This helped almost instantly: the former employer immediately requested the details and paid all the money a week later. We only asked for a certificate from the employment center.

What threatens an employer if the law is not followed

If the employer does not meet halfway, you can demand payment, forfeit and moral damage through the court. It's almost a win-win business. Illegal dismissal can also be appealed in court.

You can apply with a statement of claim to the district court at the employer's address, place of residence, or at the place where you actually worked. An employee can, within a month from the date of delivery of a copy of the dismissal order, the day the work book was issued, or the day when he refused to receive the dismissal order or work book, file a claim for reinstatement at work and the collection of average earnings during the forced absence from work.

As a result, the court will oblige the employer to reinstate an employee who was dismissed in violation of the order of dismissal due to staff reduction or headcount reduction in his previous job and to collect in favor of the employee the average earnings during the forced absence from work. If the employee does not want to be reinstated in office, the court will oblige the employer to pay money for forced absenteeism and change the grounds for dismissal to dismissal of his own free will.

Repeated violation will cost more:

manager - 10,000-20,000 RUR or disqualification for a period of one to three years;
Individual entrepreneur - 10,000-20,000 RUR;
legal entity - 50,000-70,000 RUR

Repeated violation is also more expensive:

manager - 20,000-30,000 R or disqualification for a period of one to three years;
Individual entrepreneur - 10,000-30,000 RUR;
legal entity - 50,000-100,000 rubles.

Unemployment benefits

When the compensation from the former employer runs out, the employment center starts paying unemployment benefits. Payments are due to everyone who is registered and worked for at least 26 weeks prior to dismissal.

The law "On employment in the Russian Federation" stipulates how unemployment benefits are calculated. Payments depend on the average salary for the last three months at the previous job. For example, the first three months after receiving the last compensation from the employer, the amount of the benefit is 75% of the previous salary, then another 4 months - 60%, and then 45%.

But there is a stipulation in the law that payments cannot exceed the maximum amount of unemployment benefits in Russia. In 2018, it is 4,900 rubles.

4900 RUB

the amount of unemployment benefits in Russia. There are also regional allowances, but not everywhere

In some regions, the allowance is slightly higher than the maximum amount, because it is also multiplied by the regional coefficient. It depends on the climatic conditions in which a person lives and works. The more severe the weather, the greater the premium. For example, in Moscow and St. Petersburg there is no coefficient, but in the polar regions of Yakutia or Chukotka it is equal to two. I live in Yekaterinburg, here the coefficient is 1.15. Therefore, my unemployment benefit is 5636 rubles a month.

Payments of unemployment benefits have not yet begun, but knowing their size, I understand that it will be difficult to live on them. I haven’t found a job yet, but I decided to deregister at the employment center and try myself in the role individual entrepreneur.

What to do when cutting

Make sure the company has no complaints against you. Hand over everything that is written on you, and agree with the responsible persons. This will save you from going to court with your employer.
Get the necessary certificates immediately after you leave. It is better to keep them at home than to ask the accounting department every time.
Register with an employment center within 14 days of leaving your job. This will allow you to claim compensation from your former employer for the second and third months.
Be sure to follow the rules of the job center. The first rule is not to talk about the employment center. Sorry. Of course, the first rule is to come on the appointed days, go for interviews, look for work on your own and keep the employment center informed.

Among other ways to terminate an employment contract, redundancy dismissal stands out. The fact is that, among other types of dismissal provided for by the Labor Code (Labor Code of the Russian Federation), this is the most time-consuming, but at the same time, perhaps the most guaranteeing the observance of the employee's rights.

Tom, what an employee and employer need to know when downsizing, and I dedicated this article.

Dismissal of an employee for staff reduction in the Labor Code of the Russian Federation is included in Article 81, which considers all cases when an employment contract is terminated by the employer.

○ Dismissal due to staff reduction.

✔ TC on dismissal due to staff reduction.

Article 81 of the Labor Code of the Russian Federation combines both cases of dismissal for absenteeism, violation of discipline or labor protection measures, and cases when an employee leaves, although he is not guilty of anything (these include, in addition to downsizing, the liquidation of an organization, for managers, their deputies and chief accountants - change of the owner of the organization).

The Labor Code of the Russian Federation does not decipher what is the difference between downsizing and downsizing. In practice, the difference is also insignificant and consists only in the fact that with a reduction in the number of employees, the position in the staffing table remains, but there will already be fewer employees (for example, instead of three managers in the department, one remains).

With a reduction in staff, a specific position is generally excluded from the schedule (for example, the position of a personnel officer is abolished at an enterprise, and his duties are transferred to an accountant).

✔ Who can and cannot be reduced?

Despite the fact that the reduction in the number or staff of employees depends entirely on the initiative of the company's management, the law provides for certain benefits for a number of categories of employees.

I'll tell you more about them below. In the meantime, I will say that when reducing, there is a rule about predominantly leaving the workplace... Art. 179 of the Labor Code of the Russian Federation stipulates that first of all workers with lower qualifications and lower labor productivity should be dismissed in case of layoffs.

In practice, this usually means that reduce primarily employees with less work experience as seniority usually implies experience.

The reduction should take into account the results of qualifying exams, the employee's education (in the same position, an employee with a higher education will have an advantage over a colleague with a secondary specialized), as well as the indicators achieved by each of the employees in the previous period.

The Labor Code of the Russian Federation and other acts also require that the following employees enjoy the advantage when leaving work:

Having disabled children.
Single mothers and fathers.
The only breadwinners.
Suffering from an injury or an occupational disease received in this enterprise.
War invalids.
Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
Victims of the Chernobyl disaster and the Semipalatinsk trials.
Improving qualifications in the direction of the organization, combining training with work.
Employees-inventors (oddly enough, the USSR Law "On Inventions in the USSR" is still in effect in this part).

In addition, some employees cannot be dismissed by the employer at all except at their own request, agreement, or for misconduct.

With regard to the reduction, in addition to the usual benefit recipients, members of the management of trade unions not lower than the workshop level cannot be dismissed.

It is prohibited to dismiss the elected representatives of the collective of employees who participate in the resolution of disputes with the employer.

✔ The main reasons for the reduction.

The law does not directly establish in what cases the employer has the right to reduce the number or staff of employees.

The Constitutional Court of the Russian Federation, in its determination No. 867-О-О of 18.12.2007, established that this is the employer's right in cases when it is required by economic necessity.

However, in turn, the Supreme Court of the Russian Federation, by ruling No. 19-B07-34 dated 03.12.2007, introduced a rule that in the event of a dispute, the court has the right to verify the necessity and justification of the reduction.

Thus, an employer wishing to take such measures needs to order on the reduction, indicate for what reasons the dismissal is made.

As a rule, the reasons forcing to lay off workers are:

Low profit of the enterprise and inability to pay salaries to the previous staff.
The low efficiency of the previous staff and the presence of posts that are not needed.
Changes in the technology or organization of production, in which part of the workers is unclaimed.

✔ The necessary conditions.

Dismissals of workers to layoffs are possible provided that the employer meets a number of conditions.

Full and strict adherence to the reduction procedure prescribed by law.
If the enterprise previously concluded collective agreements with employees, or the employment contracts of the dismissed contain additional guarantees upon dismissal, they must also be respected.
Justification of dismissal.
As already mentioned, in the event of a dispute, the court has the right to check to what extent the dismissal was justified economically and organizationally.
Employment service notification.
Separately, this point is worth highlighting, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

✔ The order, procedure and rules for dismissal for redundancy.

Reduction of staff for any enterprise is a rather complicated procedure, and a violation at any of its stages is fraught with a fine or legal proceedings for the employer.

Dismissal should be made in the following order:

The management of the enterprise issues an order on the planned reduction at least two months before the employee is to be fired (Article 180 of the Labor Code of the Russian Federation). Each of the employees to be dismissed is warned personally about the expected layoff and reads the text of the order against signature. However, one should not confuse the order to lay off the staff with the order to dismiss a specific employee - such orders are issued much later, when the deadline for dismissal is due.
Employees who are subject to layoff, the management of the company is obliged to offer any other position that meets the qualifications of the dismissed employee. It should be remembered that the offer of another job is not a one-time action: the employer is obliged to notify the dismissed about the vacancies that open at the enterprise up to the very termination labor contract... The employee must either accept the offer and continue working in another position, or refuse - and the refusal must also be recorded in writing, with the date and signature of the employee.
The employer notifies the trade union organization, if such exists in the enterprise. The notice period is the same as for workers, but in the event that a mass layoff is planned, the union should be warned not two, but three months in advance. This rule is established by the definition of the Constitutional Court of the Russian Federation. In turn, the trade union must express its opinion on the dismissal within seven days. If the trade union does not agree to lay off workers, then according to the law, positions must be agreed within three days. If, in this case, no agreement was reached, the employer has the right to dismiss the workers, but the trade union can appeal this decision to the Federal Labor Inspectorate (Federal Labor Inspection). The inspectorate, in turn, may recognize the dismissal as illegal and demand the reinstatement of the dismissal for the same place work with payment compensation and for forced absenteeism. The decision of the Federal Labor Inspectorate can be appealed by the employer in court.
In addition to the trade union, the employer warns the employment service within the same timeframe (two, in case of mass dismissal - three months).
If within two months the employee has not agreed to any of the vacancies offered to him, the employer issues an order for dismissal to reduce the staff. The order is usually issued according to the unified form T-8. In this case, the employee is issued a work book, a salary is paid for the days worked in the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is for the employee in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid. Its size is not less than the average monthly salary, but according to an employment contract or collective agreement with employees, the allowance can be increased.
If an employee, after dismissal, registered at the labor exchange, but was not employed, the former enterprise continues to pay him the average monthly salary for two months (but deducting the severance pay already received).
If the employee agrees, he can resign on the reduction and before the expiration of the two-month period. In this case, the employer pays him, in addition to the severance pay, also the salary for the unworked time between the day when he actually quit and when he should have quit according to the employer's plan. In addition, the employment contract or collective agreement may provide for other benefits for the reduction of staff.

The order on the planned dismissal for redundancy - not less than two months in advance;
Warning of the employment service and the trade union organization (if there is one at the enterprise) - not less than two months, in case of mass dismissal - not less than three months.
The deadline for payment of wages for the worked part of the month, compensation for unused vacation and severance pay is no later than the day of dismissal.
The terms of payment of the average salary for an employee registered with the employment service, but not employed, is up to two months.

Violation of these deadlines can lead to a fine for individual entrepreneurs - up to 50 minimum wages, for legal entities- up to 500 minimum wages.

Pursuant to article 81 Labor Code RF, a reduction in the number or staff of employees is one of the grounds for terminating an employment contract at the initiative of the employer. In order to dismiss an employee on this basis, the employer is obliged to comply with a certain algorithm of actions established labor legislation... At the same time, organizations have certain obligations to the employee, which will be useful for each of the parties to the employment contract to know about.

Roman Larionov,
legal adviser of the company "Garant"

Reduction as deliverance

The decision to cut jobs is made by the employer. The reasons for this can be very different (the economic situation of the organization, etc.). Of course, sometimes employers try to get rid of unwanted workers in this way, forgetting that it is not a specific person who is to be dismissed, but the position in which he works. Some go to "fictitious" job cuts, fire the employee, and then introduce a new staffing table, in which the reduced position (sometimes with a different name) is actually present. However, employers do not take into account that an employee, having learned about this, can go to court to protect his rights.

We can say with confidence that the court will decide in favor of the employee. This, for example, is evidenced by the Determination of the Judicial Collegium for Civil Cases of the Omsk Regional Court dated May 23, 2007 N 33-1597, which canceled the decision of the court of first instance and sent the case for new consideration. In resolving the dispute, the court of first instance did not take into account that after the employee was fired, the next day the employer began to operate a new staffing table, according to which the number of employees not only did not decrease, but increased, but also increased the payroll. At the same time, new positions appeared in the staffing table and additional units of previously existing positions were introduced.

In cases of reinstatement at work, the employee has the right to submit an application to the district court within one month from the date of delivery of a copy of the dismissal order to him or from the date of issue of the work book (Article 392 of the Labor Code of the Russian Federation). It can be concluded that within a month after the reduction of the number or staff of employees, the employer actually cannot introduce new staff units.

Provide another job

By virtue of Part 1 of Art. 180 of the Labor Code of the Russian Federation upon dismissal to reduce the number or staff of employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation.

Part 3 of Art. 81 of the Labor Code of the Russian Federation determines that dismissal to reduce the number or staff of employees of an organization, an individual entrepreneur is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or job corresponding to the qualifications of the employee, and a vacant lower position or lower paid work), which the employee can perform taking into account his state of health. In addition, according to clause 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 17.03.2004 N 2 "On the application by the courts Russian Federation Of the Labor Code of the Russian Federation "(hereinafter - Resolution No. 2), when deciding on the transfer of an employee to another job, the employer must also take into account the employee's real ability to perform the work offered to him, taking into account his education, qualifications, work experience.

With such a dismissal, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in this area or in other areas, if this is provided for by the collective agreement, agreements, labor contract.

Failure by the employer to provide another, suitable job for the employee is a violation of the order of dismissal and entails the restoration of the latter at work in his previous position.

For example, by the definition of the Ryazan Regional Court of 11.10.2006 N 33-1459 due to the violation by the employer of the order of dismissal, the employee was reinstated at work in his previous position. In particular, the court established that “the defendant offered the employee positions that he could not occupy due to qualification requirements (presence higher education, work experience in the specialty, etc.), and vacant positions were not offered, for which other employees were hired in the period from 10/25/2005 to 06/08/2006, in particular, the positions of a driver, cylinder filler, painter , grinder, sandblaster. At the hearing, the defendant's representative did not deny this circumstance and did not present evidence confirming the impossibility of transferring the plaintiff to one of the listed positions. "

Note that in paragraph 23 of Resolution No. 2 it is provided that when considering the case of reinstating a person at work, the employment contract with whom is terminated at the initiative of the employer, the employer is responsible for proving the existence of a legal basis for dismissal and compliance with the established procedure for dismissal.

Forewarned on time?

Part 2 of Art. 180 of the Labor Code of the Russian Federation establishes that the employer is obliged to notify employees personally and against signature of the upcoming dismissal due to a reduction in the number or staff of the organization's employees at least two months before dismissal. From the foregoing, it can be concluded that each employee dismissed on the basis under consideration should be warned about this personally and in writing. As you can see, the norms of the Labor Code of the Russian Federation establish only the minimum notice period (two months), therefore, the employee can be warned for a longer period, for example, three months or more.

Compliance with the terms of warning about the upcoming reduction is a very significant reason for the established order of dismissal.

For example, in the Definition of the Judicial Collegium for Civil Cases of the Omsk Regional Court dated May 16, 2007 N 33-1502, it is explained that the court of first instance reasonably concluded that the employer did not comply with the established part 2 of Art. 180 of the Labor Code of the Russian Federation, a two-month period for warning the employee about the upcoming dismissal to reduce staff, since he was notified of dismissal on 04/03/2006, and dismissed on May 31, 2006. Therefore, the employer did not comply with the procedure for dismissing the plaintiff established by the Labor Code of the Russian Federation under paragraph 2 of Art. ... 81 of the Labor Code of the Russian Federation, and, accordingly, the court of first instance reasonably reinstated the employee in the position of a worker on the duty brigade production department from 31.05.2006. At the same time, in favor of the employee, the employer was charged with the average earnings for the entire period of the forced absence.

However, with the written consent of the employee, the employer has the right to terminate the employment contract with him before the expiration of the two-month period by paying the employee additional compensation in the amount of average earnings for the time remaining until the expiration of the notice of dismissal. In this case, the employee also retains the payments provided for in Art. 178 of the Labor Code of the Russian Federation. He is paid a severance pay in the amount of the average monthly earnings and the average monthly earnings for the period of employment are retained for him, but not more than two months from the date of dismissal (including the severance pay).

For some categories of employees, different periods of warning about the upcoming dismissal have been established. In particular, employees who have entered into an employment contract for up to two months must be warned of the upcoming dismissal at least 3 calendar days in advance (part 2 of article 292 of the Labor Code of the Russian Federation), and seasonal workers- not less than 7 calendar days (part 2 of article 296 of the Labor Code of the Russian Federation).

Are there any privileges?

At the same time, termination of an employment contract with a reduction in the number of employees is possible only if the employee does not have a pre-emptive right to remain at work (Article 179 of the Labor Code of the Russian Federation).

By general rule a privileged position is reserved for workers with higher labor productivity and qualifications. These workers are considered more valuable, and they can only be fired as a last resort. With equal labor productivity and qualifications of employees, preference in leaving work is given to families who support two or more dependents, to persons in whose family there are no other employees with independent earnings, to employees who received an occupational injury or occupational injury during the period of work with this employer. illness, invalids of the Second World War and invalids of military operations to defend the Fatherland, as well as workers who improve their qualifications on the employer's direction without interruption from work. At the same time, the employer retains the right to provide for other categories of privileged workers by the collective agreement.

The Labor Code of the Russian Federation has established several categories of workers who cannot be dismissed due to staff reductions. These include pregnant women, women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen years old) and other persons raising these children without a mother (Article 261 of the Labor Code of the Russian Federation) ... Dismissal in connection with a reduction in the staff of an employee under the age of 18, in addition to observing the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation).

Notify government agencies

The staff reduction can fall either on one position or an entire department or division. In any case, when deciding to reduce the number or staff of the organization's employees and possible termination labor contracts with employees, the employer is obliged to inform the employment service authorities about this in writing no later than two months before the start of the relevant events and indicate the position, profession, specialty and qualification requirements to each of the laid-off workers, as well as the terms of payment for their work. If the decision to reduce the number or staff of the organization's employees may lead to mass layoffs of employees, the employer shall notify about this no later than three months before the start of the relevant events. This obligation is established by Part 2. Art. 25 of the Law of the Russian Federation of 19.04.91 N 1032-1 "On employment of the population in the Russian Federation".

The criterion for mass release is established by the Regulation on the organization of work to promote employment in conditions of mass release (approved by the Resolution of the Council of Ministers - Government of the Russian Federation of 05.02.93 N 99). The main criterion is the indicator of the number of dismissed employees due to a reduction in the number or staff of employees for a certain calendar period. For example, a mass layoff can be considered if, on this basis, the following is dismissed: 50 or more people within 30 calendar days; 200 or more people within 60 calendar days; 500 or more people within 90 calendar days.

As you can see, when dismissing on the basis under consideration, it is necessary to be extremely careful and comply with the procedure established by law, because if the dismissal is recognized as illegal, the employee will be reinstated in the previous position, and the employer may be obliged to pay the average earnings for the entire period of the forced absence or the difference in earnings for everything. time of performance of lower-paid work.