Dismissal with a reduction is currently not uncommon. In this regard, the worker must be competent in matters of reduction, in particular, to know in which cases the employee has the right to leave at work.
Reduction criteria
When studying this issue should refer to Art. 179 of the Labor Code of the Russian Federation with comments, according to which the pre-emptive right to leave work at reduction is given to employees in accordance with two criteria: productivity and qualification.
To avoid unforeseen consequences, in particular, claims from dismissed employees, the employer should draw up an objective picture of the qualifications and achievements of employees subject to further reduction.
When deciding on the value of qualifications, an employer should use the approved Qualification Directory of Positions, which determines the position of an employee in a particular organization. If there is no position in the directory, the provisions of the labor and collective agreements should be evaluated. Evaluation is carried out in a comprehensive manner: work experience, marital status, educational level, and the presence or absence of disciplinary sanctions are taken into account.
However, in some cases, the employer is not required to identify benefits.
Assessment Procedure
Sometimes the employer does not have a written obligation to assess the qualifications of the employee. For example, while reducing the posts of the whole structural part, department, since there is no one to compare with, the department is completely disbanded. If the dismissal occurs for a certain position, then the reduction is considered mandatory. Failure to comply with the assessment procedure usually results in the court reinstating the employee in the organization, therefore it is in the employer's interests to conduct this procedure with particular care. At the same time, the choice of the method of establishing the significance of employees remains with the inspector.
Professional Assessment Commission
In such a situation, a special commission is created at the enterprise to determine the pre-emptive right to leave at work, this form is most preferred for the courts of the Russian Federation. The commission is made up of staff workers, heads of departments from which the dismissal is carried out, members of the union and lawyers (in the absence of such a position in the organization, an additional consultation with a lawyer is the best way to avoid legal errors). The creation of the commission should be approved by an appropriate order explaining the powers of each of the participants. The manager, like no one else, knows how to characterize an employee, a lawyer will be able to correctly draw up a legal opinion, the personnel officer is best acquainted with the personal file of the employee.
Any commission draws up a meeting with a protocol, reflecting in it the main data: information about present and absent, issues on the agenda, contenders, full information about employees and the commission’s decision.
A convenient form for the analysis will be statistical cards or comparative tables arranged according to certain criteria.
Evaluation Criteria for Identifying Benefits
The employee is usually evaluated by experience and quality of knowledge. As objective indicators consider compliance with production standards, the implementation of planned indicators, individual tasks.
Qualification attributes include skills, experience, and employee skills. When assessing, they also take into account the level of education, the presence of additional characteristics, the quality and amount of work done, take into account penalties and incentives at work, other circumstances. In the case of a trial, the consideration of these circumstances will incline the judge's opinion in favor of the employer, since the rules of art. 179 of the Labor Code of the Russian Federation. With the comments of the court, it becomes clear which way the practice is going, how the benefits are identified during reduction.
Accounting for seniority upon dismissal
The professional path of the employee is directly reflected in such a document as a work book. The procedure for confirming seniority is regulated by two laws - “On labor pensions” and “On individual personified accounting”. Also in this area are the “Rules for calculating and confirming seniority for establishing retirement pensions” (07.22.02, Government Decision No. 555), “On the procedure for confirming seniority for assigning pensions” (08.24.90, Decree No. 848).
Confirmation of unaccounted for experience (for example, with the loss of a book or combined work) can be done with the help of employment contracts, orders of the director, certificates. The periods of work under a civil law contract can be witnessed both by the agreement on the provision of services, and by documents of payment. You can also find out about seniority by making an appropriate request to the pension fund authorities, if you have military tickets, certificates from the commissariats, archives, units. A very extreme option - during disasters and catastrophes, periods of work are confirmed by testimony.
With the development of electronic databases, the personified accounting system has also improved - in recent years, all information has been converted to digital format, and services like Gosuslug have been created.
In any case, when considering a separate candidate, the norms of Art. 179 of the Labor Code of the Russian Federation, with comments to which the employer should familiarize themselves in advance in order to remember that length of service is not the most significant argument in granting the right to leave with a reduction.
Accounting for education and professional qualities
Based on the provisions of the Federal Law "On Education", qualifications are confirmed by diplomas, certificates, certificates. Documents are usually presented both when applying for a job, or if a commission has already been organized, and the presence of a diploma or certificate may affect the decision to leave an employee at work. But if, according to the directory, special education is not required for a specific position, then the available certificates of graduation will not be considered an advantage. Of course, the employer will take into account, say, courses that allow you to get additional qualifications, language lessons, driving skills and more.
Performance accounting
Art. 179 of the Labor Code of the Russian Federation, with comments to which it is important to understand, labor productivity is called one of the criteria for determining benefits. In order for the dismissal to be lawful, it is necessary to collect documents that could confirm in court that a particular employee performed work more complicated than his colleagues, or took additional work, that is, executed orders of a larger volume, which is easily confirmed by agreements or orders .
The most convenient way of comparison is the use of tables, forms, in which each task and the result for a certain period of time are entered. Such accounting requires accuracy from the employer, and from a staff member - effective work throughout the entire time. Factors affecting productivity also include disciplinary action and rewards.
Categories of workers prohibited by law to dismiss
There are a number of workers whose dismissal is prohibited even taking into account the fact that their productivity indicators and qualifications are not so high. These are primarily women who have children or are only expecting them: pregnant, with children under 3 years old, single mothers with children under 14 years old.
At the same time, the Supreme Court in 2014 determined that single women are recognized as those who raise a child without a father in connection with death, imprisonment or deprivation of parental rights.
Categories of employees with preference with equal qualifications
Part 2, Art. 179 of the Labor Code of the Russian Federation points to a list of workers who have advantages when they are equal in assessing their qualifications and work: these are workers who have two or more dependents on maintenance; citizens who have received labor injuries or diseases associated with a harmful and dangerous profession; people who have received disabilities as a result of military campaigns related to the defense of the Fatherland; invalids of the Great Patriotic War; employees who take continuing education courses as directed by the employer on the job, as well as employees who are the sole breadwinners in the family.
Acceptable errors in the reduction
Among the mistakes made by the employer and leading to violations of the law include decisions on dismissal in the absence of evidence of insufficiently high qualifications, ignoring the norms of the collective agreement, non-application of the norms of part 2 of article 179 of the Labor Code of the Russian Federation. Judicial practice also dictates that when choosing a candidate from employees having equal conditions and belonging to the categories of part 2 of article 179 of the Labor Code of the Russian Federation, it is necessary to apply the sequence specified in the law. Thus, persons with dependents will have priority over citizens with disabilities.
A lawyer's consultation received in time will help to eliminate the occurrence of problems with the law and to avoid reinstatement of the employee in cases where relations with him are already ruined.