How often do we hear from acquaintances: “They are cutting back on work ...” or “Came under reduction. What payments are due, you don’t know? ” Indeed, today, due to the unstable situation on the market, many companies are reducing production volumes, mastering unfamiliar methods and technologies in order to increase the demand for services and goods, keeping the company afloat. All this inevitably leads either to a reduction in unnecessary staffing units, or simply to a decrease in the number. What payments are due for reduction, what is the procedure and nuances - we will deal with this today.
Layoff layoff
Reducing the staff of the enterprise or the number of employees is one of the reasons for the termination of the employment contract (hereinafter - the TD) at the initiative of the employer. Therefore, the worker must be paid the appropriate compensation. About what payments are due to the employee during the reduction will be described in more detail later, but now we will consider the essence of this procedure and features.
Dismissal in itself is not a very pleasant event, especially when it is not connected with the employee’s guilt or his desire, but is done due to compelled circumstances. Such in this case are usually a decrease in production or the replacement of manual labor by automatic.
The reduction is not carried out suddenly, as this is a conscious, thoughtful step of the management, drawn up in the form of an appropriate order and communicated to the employees in advance. Therefore, you should also know in advance what awaits you after your dismissal, as well as what payments are due for the layoffs.
Quantity or staff?
The head has the right to change the staff and structure of the enterprise, respectively, can eliminate unnecessary posts.
Thus, a decrease in staff is an exception to the staffing schedule; headcount reduction - a reduction in the composition of employees of a particular position.
Naturally, vacancies should be liquidated initially, and only then the question arises about the reduction of real workers.
Dismissal is recognized as legal under the following conditions:
- grounds comply with the Labor Code of the Russian Federation;
- the order is observed;
- employment contract terminated;
- payments made (if necessary by law).
The main thing in the reduction is the observance of the rights and guarantees of the employee, otherwise he will be able to challenge the procedure in court.
At present, the servants of Themis often side with the workers, since both the process and the interests of workers, for example, are underestimated by statutory payments.
Briefly about the procedure
- Issue of the reduction order.
- Notification of the trade union body for 2 months in writing (IP - for 2 weeks), for 3 months - in case of mass reductions. The opinion of this organization is optional for the employer, but it should be followed. The criterion for the mass dismissal is given in the relevant regulatory act. If minors are being reduced, the consent of the State Labor Inspectorate must be obtained.
- Written warning of employees about future dismissal - 2 months in advance (against signature and individually). Other terms are provided for certain categories: for seasonal work - for 7 calendar days; employed in jobs for up to 2 months - 3 days; without warning - with the written consent of the employee with the accrual of additional compensation. This document can be delivered by mail. If the employee refuses to sign it, it is necessary to form an appropriate act in the presence of two witnesses.
- Offer of vacant posts (including lower paid). It can also be issued in the form of a notice, with which the employee must familiarize himself with the signature and set the date, in case of refusal - the corresponding entry. The employer must offer positions in another locality when provided for by agreement (collective or labor).
- Making a transfer to new positions for employees who agreed to this. An additional agreement to the TD is printed and an order is issued.
- The AP is terminated for reduction. An order is issued, an entry is made in the work book, and, together with the calculation, it is issued to the employee on the last day.
It is in this order that the dismissal of the reduction is made. We will tell you what payments are made and who is entitled to rely on them.
Severance pay
This term can be defined as the cash payment stipulated by the labor legislation of the Russian Federation, paid upon termination of the contract on the basis of a reduction in staff or size.
These compensations are basic and additional.
The size of the severance pay is equal to the average monthly salary of an employee, which is calculated in accordance with the requirements of the Labor Code of the Russian Federation.
What are the benefits of a layoff? When a TD is terminated for a worker on this basis, the above allowance is accrued, and he is also left with the average earnings for the time of joining a new job, but not more than 2 months from the day of dismissal.
At the initiative of the employment agency, the salary for the 3rd month can be saved provided that the employee is registered for 2 weeks after leaving and has not yet been employed for objective reasons.
The term for contacting the employment center may be extended when a citizen for good reasons could not come there. If he cannot be offered a job (including to pensioners), a certificate is issued, by virtue of which the employer saves the earnings for the employee for the 3rd month.
If a person 2 times without good reason refused the proposed job, then the above document is not issued, and earnings are not saved.
What are the benefits for job cuts? This question can be answered in the same way as the previous one, since the liquidation of a post is also a reduction in staff.
The first allowance is paid in advance upon dismissal, the subsequent ones within the corresponding months.
Additional Compensation
What payments are due for staff reductions if an employee agrees to terminate the contract before 2 months have passed?
Firstly, this fact must be confirmed by a written statement of the employee, otherwise, the dismissal can be recognized as illegal.
Secondly, in this case, the employee is accrued an additional payment in the amount of his average salary, calculated in proportion to the period remaining until the expiration of the notice period.
By contracts, labor or collective, other, increased amounts of compensation may be established, which in no way infringe on the rights of workers in comparison with the provisions of labor legislation.
More than once at a legal consultation one can hear the following question: what payments are due when a pensioner is reduced? That is, people assume that payments also vary depending on how many people have worked and what kind of merit he has. In reality, the status of a pensioner does not affect the size of the severance pay, but the fact of a significant length of service can be taken into account when choosing among employees.
Special conditions
In addition to the general grounds for assigning payments, there are special ones provided for certain categories of workers, for example, for seasonal work employed in the Far North and equivalent areas.
So, in these cases, what payments are due for a reduction from work:
- for workers in temporary (seasonal) work - allowance in the amount of average earnings for 2 weeks;
- if the TD is concluded for a period of up to 2 months, then payments are not made;
- for workers in the Far North and similar areas - as a general rule, while earnings remain for up to three months, in special cases by decision of the employment authority - up to 6 months if they are registered for a month.
Such extended periods are foreseen for the latter category of employees, since the indicated regions are very remote, which creates difficulties for employment.
The provisions of the Labor Code of the Russian Federation on the reduction and payment procedure also apply to persons working concurrently.
At the same time, the average salary for the period of employment is not maintained for them, since they also work in their main job.
Who takes advantage
When the choice arises during the reduction, all factors are taken into account. The advantage is given to persons with high labor productivity and qualifications.
The latter is confirmed by relevant documents: a diploma of education, a certificate of advanced training, retraining, etc. Qualification is an indicator of the professional skill of the employee, experience, skills and knowledge. Allocate categories and categories. Qualification level - vocational training level; category - degree of education and work experience.
Labor productivity remains at the discretion of the employer, he is entitled to set his own criteria, on the basis of which to conduct a selection. It seems that a person with high labor efficiency is a person who most quickly, efficiently and skillfully performs the functions entrusted to him.
So, in the case when labor productivity and qualifications are identical for workers, the following categories will have an advantage:
- invalids of the Second World War;
- disabled people fighting to defend the homeland;
- family with two or more dependents;
- persons whose other family members do not have their own earnings;
- Workers with health problems or occupational ailments acquired from this employer;
- who improve their skills on the job in the direction of the employer;
- others under a collective agreement.
What payments are due for the reduction of these categories of people, if you still had to dismiss them? The same as ordinary citizens, without any privileges.
Who can not be reduced
The Labor Code of the Russian Federation does not permit the dismissal of the following persons by reduction:
- pregnant
- women with children under 3 years old;
- single mothers with a child under 14 (disabled person - under 18);
- other persons raising these children without a mother.
- the parent (legal representative of the child) - the sole breadwinner of a disabled person under the age of 18 or a child under the age of 3 years in a large family (children must be young), if another parent (legal representative) does not work on TD.
Such labor benefits are provided by the legislator specifically to support motherhood and childhood.
At the same time, the category of pregnant women is almost untouchable. Even if at the time of issuing the order to reduce or after receiving notice it turns out that the woman is expecting a baby, then it will not be possible to reduce it. If she has already been dismissed, then it is necessary to restore her previous position. Of course, the employer has the right to request a medical certificate to confirm this fact.
When an employee is on vacation or on sick leave, it is also impossible to fire him!
Reduction by agreement
Recently, employers often try to cheat and circumvent the law so as not to pay severance pay, by offering the employee to leave by agreement of the parties or on their own initiative.
Let's see what payments are due when reducing an employee in this way:
- On one’s own request: a salary + compensation for unused vacation is supposed.
- By agreement of the parties: salary + vacation pay + supplement by agreement of the parties
And compare them with the layoffs. What are the benefits? Salary + vacation compensation + severance pay + average salary for the 2nd month (+ salary for the 3rd month, if there is no work, according to the decision of the OZN).
It can be seen that the employee dismissed for the reduction always receives more financial gain, therefore it is better for the employer to dismiss him for the first two reasons than to drag this burden. However, in this case, the guarantees provided for by the Labor Code of the Russian Federation are violated. In any case, the choice always remains with the employee.
If in court ...
So, we turn to the question of what payments are due to the employee during the reduction of staff, if he decided to go to court.
Indeed, not all disputes are resolved amicably, sometimes you need to stand up for yourself and turn to the labor inspectorate or immediately to the court.
Suppose you were offended by the size of the severance pay, or you weren’t paid at all, or you think that you were illegally fired for reduction, then you should be sent to the servants of Themis. Set out your claims in the form of a statement of claim and file a lawsuit.
Remember that the limitation period for labor disputes is 3 months, and if the dismissal is disputed - 1 month.
What can be won in court, what payments are due for reduction in this situation?
- Earnings for all days worked.
- Compensation for unrealized vacation.
- Severance pay.
- Average earnings for the corresponding months.
- Compensation for non-pecuniary damage.
- Salary during a forced absenteeism (in a situation of illegal dismissal and reinstatement at work).
- Legal expenses, including payment for the services of a lawyer.
It can be seen from the above list that going to court is always associated with additional expenses, for example, paying for legal services, postage, etc. In addition, of course, litigation takes time and effort. Therefore, before going to court, you need to weigh all the pros and cons, assess the chances of winning a professional lawyer.
Such categories of cases related to the recovery of payments usually relate to the jurisdiction of district (city) courts. The state duty for these labor disputes is not paid.
As a general rule, claims for the recovery of amounts must be brought to court at the location of the employer, while applications for the restoration of labor rights may be submitted to the court at the place of residence of the plaintiff. If an employee works in a branch or representative office, then at their location. The dispute may be considered in court at the place of execution of the contract.
So, to summarize - we will determine what payments are due to the employee in case of staff reduction in any case:
- severance pay;
- the average earnings for the 2nd month of job search, regardless of the reasons for unemployment, even if you refused the offered vacancies.
These compensations must be mandatory, the rest are additional.
Thus, if you are also affected by such an unpleasant phenomenon at work, you need to be savvy to defend your rights. That is why you must certainly imagine how the dismissal procedure is carried out, what payments are due for reduction, what to do if the law is violated, in what cases to go to court, what is the period for protecting the rights. Legally competent person is protected in any situation.