Before reducing the employee, by law, the employer agrees to offer him another job that will suit him. One of the criteria of any workplace is a vacant position.
Lack of clear definition
There are a lot of cases when difficulties arise in the field of the correct interpretation of the law in the sense that it is very important to understand correctly what is actually a vacant position.
For this, the legislation clearly describes the signs of a vacancy in Moscow, the capitals of republics, regional and regional centers, everywhere in the country:
1. This is a job that is fully consistent with the qualifications of the layoff employee.
2. This position is not lower paid or lower in official position.
3. The employee for health reasons has the opportunity to perform this work.
4. The work is suitable for the location employee.
If the work is located in another locality, but the employer has the opportunity to offer it to his employee in the transfer order, this should be provided for by the employment contract or some other agreement.
Employer Responsibilities for Reducing an Employee
According to the law, the employer must offer the employee such work that will satisfy him not only by qualifications, but also correspond to his experience, state of health, and be suitable for his location. And he must do this even before the termination of the employment contract, not only because of the reduction of the employee, but also in many other cases, which are also provided for by the Labor Code of the Russian Federation.
Such cases include:
1. If the qualifications, state of health, results of certification or experience of the employee does not correspond to the position that he currently holds.
2. If an employee who previously performed this work has been reinstated in this vacant position, which may be determined by the labor inspectorate or by a court decision.
3. If the employee is disqualified or receives any other administrative punishment, which excludes the possibility of this employee performing his duties.
4. Other cases.
Vacant position as a free job
In practice, very often there are all kinds of disputes on the concept of a vacant position. And this is due to the fact that there is no clear concept of a vacant position, it is not even spelled out in the law. In some cases, only vacant jobs are called a vacant position, that is, those positions that are not occupied by anyone. Some representatives of the law believe that the employer is obliged to offer those positions that temporarily remain vacant due to the absence of the employee in his workplace, even when this workplace is reserved for him. In this case, we are talking about the so-called temporary vacant posts.
Nevertheless, such a position is not always correct and fair. Those positions assigned to temporarily absent employees cannot be vacant. The employer has the right to offer them to his employees in a special transfer procedure.
The free workplace, which is available in the staff list, is a vacant position. At the same time, a vacant position is one for the replacement of which an employment contract has not been concluded with any employee. Employers are not required to offer employees a transfer to positions that are temporarily vacant. It follows that they do not bear administrative responsibility for not informing employees of the availability of such posts. However, in the event of any dispute, the law is first on the side of the employee, especially since such situations are not provided for in the law.
Dismiss cannot be left
Dismissal is only possible in cases where it is impossible to employ an employee, that is, there is no vacant post. If he is transferred to a position that is retained by another employee, this means that the employer does not fulfill his obligations to employ the employee, but merely provides him with a temporary position, the transfer to which is impossible on an ongoing basis, because after the conclusion of the employment contract, his change timing is illegal.
In cases where the employer still decides to appoint the employee to a temporary position, there are two options for the further development of events. The first is when the employer transfers the employee to a position that is not vacant, and when his temporary transfer to this position expires, he dismisses him because he has been reduced, and the employer cannot offer him another. The second option is when the employer terminates the employment contract with the employee, and then draws it up under a fixed-term contract. At the same time, he determines the position that is assigned to another employee who is on maternity leave.
Job combination
Some legislative sources indicate that the employer is obliged to offer as a vacant position the work that is performed by the part-time worker. The same is confirmed by judicial practice. Some judges consider that the dismissed employee is required to offer only those jobs that are not occupied, and selection for vacant positions in such cases is not advisable. And only such a position that is not replaced by anyone under an employment contract can be considered free. If the employee works on a combination of posts, such a post should not be considered vacant.
What does the Labor Code say about combining posts?
The Labor Code of the Russian Federation provides for a somewhat simplified procedure for combining posts, as well as expanding service areas. There is one condition - to warn in writing about this within three business days. In cases where the employee works half the rate, the second half remains vacant, which means that such work should be offered to the employee. Judicial practice also proves the existence of such a rule.
According to some provisions of the Labor Code, which speaks of a legislative understanding of the concept of a vacancy in Moscow, federal cities and in all constituent entities of the Russian Federation, if an employee gives written consent, then along with the main work that is defined by the labor contract, he may be offered to do additional work in compliance with his profession and skills, and this is usually paid extra.
When combining posts, the conclusion of an employment contract is not required, which distinguishes such cases from those when the employee performs part-time work. When combining posts, he occupies the only position, but the combined position in which he performs his duties, while remaining vacant. In this case, employees working in combination of posts receive additional pay.
The procedure for providing an employee with a vacant position
For each employee whom the employer intends to reduce in his position, it would be advisable to compile a list of available vacancies that suit him individually. In such a list should be indicated all the basic requirements for the experience of his work, qualifications, salary and features of the proposed work. If he is offered positions that are temporarily vacant, this must be indicated on this list, along with the reason why this position is temporarily not occupied by anyone.
The procedure for notifying a candidate for a vacant position about available jobs
There are several options:
1. The employer shall notify the employee once during the termination of the employment contract.
2. During the entire period of organization of regular activities, the list of vacant posts is periodically updated until the employee decides to transfer to one of them.
3. The employee should be notified twice - at the time of delivery of the notice of the planned staff reduction and upon termination of the employment contract.
Job List
The employer independently decides in which order and how many times to acquaint the employee with the list of vacancies. However, it should be borne in mind that just handing a notice of transfer to another position is not enough, because the number of vacant posts can change significantly while the employee receives such a notice. If any new positions become vacant, it should also be offered to the dismissed employee. The main thing in this case is that the employer can confirm that at the time of the dismissal of the employee, his transfer to another position was impossible, since the employee refused all the vacancies offered to him. If the employer has repeatedly offered the employee other vacancies, then he can transfer him to another position, without waiting until the notice expires.
The employer is obliged to say that the vacant positions are those that are currently vacant and offer them, otherwise the transfer may be recognized by the court as compelled, which means that illegal actions will be allowed on the part of the employer.
If a vacant position is suitable for several dismissed employees at once, but it is one, then in this case the employer can independently decide to whom to offer this workplace, and first it is offered to the employee to whom it suits most. And only if that employee refuses to transfer to this position, they offer it to everyone else.
Vacancy Competition
The Labor Code of the Russian Federation says that one of the grounds for concluding an employment contract is the election of an appropriate position on the basis of a competition. Identical information can be seen in the regulations on the competition for filling a vacant position or in the Decree of the President of the Russian Federation. This competition is held in order to fully assess the professional level of all candidates for a vacant position, as well as their compliance with all the basic requirements for the position.
Who is eligible to participate in the competition?
The Labor Code also clearly defines all categories of employees who are eligible to participate in the competition for filling vacant public service posts. There are only three such categories - these are municipal employees, scientific and pedagogical specialists of higher educational institutions, as well as state civil servants. When it comes to other institutions, the procedure for concluding labor contracts may be provided for by other legislative acts of a more local nature, for example, by the provisions and charters.
In addition, the Labor Code establishes special requirements that must be observed when executing an employment contract as a result of the election of candidates for the competition.
Admission to public service
The following requirements are established by the legislation for an employee participating in a competition for filling vacant civil service posts and entering the work in the manner of the above selection:
1. The employee must be a citizen of the Russian Federation.
2. The age of the employee is at least 18 years, that is, he must be an adult, and this is the main sign that he can fully fulfill his duties as a citizen of the Russian Federation.
3. An employee must speak the state language.
4. A person participating in a competition for filling a vacant post and possibly a future public service employee must comply with all qualification requirements. For admission to some positions it is required to have a higher education, in other cases it is not necessary, therefore all the nuances must be carefully checked and taken into account.
Within several working days, all applications received from candidates for the position are sent to the representative of the organization and to all participants in the competition. A special tender commission selects one of them and makes a decision on concluding an employment contract. The remaining candidates have the right to be included in the personnel reserve of the organization.