Job loss is the biggest problem that can be caused by the financial and economic crisis. To get out of a difficult financial situation, organizations resort to the optimization of the production process. As part of optimization, a reduction in the number of employees is often made. Who can't be fired for a cut? What rights does an abbreviated employee have? What responsibility does the organization have?
What is a layoff?
Reduction of staff is a procedure for the abolition of posts (one or more), carried out in accordance with labor legislation. One of the methods of reducing the number of staff is the elimination of vacant positions. The staffing table is the main evidence confirming the fact of reducing the number of employees. If the organization does not have a staffing table, then the payroll or list of employees can also act as a supporting document.
Legitimate Staff Reduction
Russian labor legislation regulates the procedure and determines the grounds for the reduction of workers. Thus, the employer may dismiss employees due to a decrease in the number of staff, reorganization or liquidation of the enterprise. Moreover, the employer himself determines the optimal number of employees in the organization. According to the law, the employer is not obliged to justify the decision to dismiss the employee on the reduction, but formally the procedure should be carried out on the basis of the Labor Code of the Russian Federation (Articles 82, 179, 180, 373). Dismissing an employee of an organization due to a reduction in the number of employees is possible only upon liquidation of the position that he holds.
Inappropriate staff reduction
In practice, there is often an unlawful (imaginary) downsizing, which has no valid reason. This procedure is illegal. Employers resort to this method when they need to fire an employee, but there are no real reasons for this. In case of incorrect termination of the contract or in case of non-compliance, the reduction is also considered unlawful. The rights of the dismissed in this case can be upheld in court. However, in practice it is quite difficult to convict of the illegality of the actions of employers.
How to get fired by a reduction
This procedure consists of several stages.
- The start of the procedure for reducing the number of employees should be formally confirmed by an appropriate order and the approval of a new staffing table. Moreover, the new schedule is approved before the start of the procedure itself. Those employees whose position has not been preserved in the new staff list will be dismissed.
- Article 81 of the Labor Code of the Russian Federation governs the next stage of the procedure. At least 2 months before the planned date of termination of employment contracts with employees, the employer must send a written notice to the trade union organization.
- At least 2 months before the dismissal of employees due to downsizing, the employer is obliged to notify the local employment service in writing. The notice must indicate the position, specialty, profession and qualifications of each specific employee. The employment service should be informed about the planned reduction of the organization’s staff at least 3 months in advance if the procedure could provoke massive layoffs.
- 2 months before the planned date, the employer must inform its employees about the reduction for signature. When an employee refuses to sign a warning, the personnel department draws up an act.
- The employer must offer employees an alternative - vacant positions in their own or other companies. If vacancies appear in the organization during the warning period, the employer should first offer them to employees who have been reduced. If vacancies appear in the organization in a two-month period, the manager notifies the staff to be reduced and in no case accepts new ones. When selecting vacancies, the qualifications and health status of the employee should be taken into account. With his consent, the translation procedure is started. First of all, similar vacancies are offered. The company's management has the right to dismiss an employee without warning by prior agreement of the parties, which is executed in writing. In this case, an additional monetary compensation is paid to the injured party, the amount of which is not limited by law and depends only on an agreement on the spot.
- The company's management issues an order to dismiss employees, which indicates the date and reason for termination of the employment contract. Workers get acquainted with him under the signature. If the employee refuses to sign the order, an appropriate act is drawn up.
- Dismissed employees on the last working day are counted, issued a work book with the appropriate entry. When dismissing employees in a trade union, the motivated opinion of this organization should be taken into account (Article 81 of the Labor Code of the Russian Federation, as well as 82 and 373). The dismissal of persons under the age of 18 is allowed with the consent of the state labor inspectorate and the commission for the protection of the rights of minors.
Who should not be fired
In the Russian labor legislation there is a list of those employees who cannot be dismissed due to layoffs. Who can't be fired?
- Women with children not older than 3 years.
- Women on maternity leave (Labor Code of the Russian Federation, article 256).
- Single mothers with children not older than 14 years old (if a disabled child is under 18).
- Persons raising children under 14 years old without a mother (if a disabled child is under 18, article 261 of the Labor Code of the Russian Federation).
- Employees of organizations on vacation or sick leave.
- Minors without the consent of the state labor inspectorate.
Also, according to the Labor Code of the Russian Federation (article 256), maternity leave can be granted until he reaches 3 years of age at the request of the mother. The workplace and position in this case are retained by the woman.
Can a pregnant woman be dismissed on the basis of a reduction? Such dismissal is considered illegal. As article 261 of the Labor Code of the Russian Federation states , dismissal is permissible only upon liquidation of the organization.
The only exceptions are cases when the reduction takes place as part of the liquidation of the enterprise.
Who has advantages
In addition to the list of those who cannot be dismissed due to layoffs, the Labor Code also includes such a thing as “preemptive right”. According to article 179 of the Labor Code, this right gives employees of organizations the advantage of maintaining a job while reducing staff, depending on the quality of their work responsibilities or social reasons. These workers are the last to be fired.
The preemptive right is enjoyed by workers with a high level of qualification and labor productivity. Work experience and education are also taken into account. Qualification must be confirmed by documents on graduation, certificates of advanced training, extracts from the minutes of the commissions on assignment of a category or rank, etc. To assess the level of qualifications of employees, company management can conduct certification, including unscheduled. However, the procedure for conducting such certifications should be reflected in the internal documents of the organization. If all employees have equal qualifications and labor productivity, the head decides on dismissal together with the trade union organization.
The employees have the preemptive right to save a workplace:
- Containing two or more dependents (family circumstances).
- Who independently support their family (there is no other source of income than the salary of this employee).
- Received injuries or occupational diseases during the period of fulfillment of labor obligations from the employer conducting the reduction.
- Disabled people fighting.
- Advanced training in the field of work in the direction of leadership.
The collective agreement may also establish other categories of employees with the pre-emptive right to preserve the workplace.
Features of dismissal to reduce retirees
Often in Russian organizations people who have reached retirement age also work. However, age is not the reason for the primary reduction. Article 179 of the Labor Code states that age can be an advantage for an employee, as it can be an indicator of high qualification and productivity.
Article 178 of the Labor Code states that retirees must be provided with all guarantees and payments upon dismissal. Other interpretations of these laws contradict the principles of equality of rights of workers and non-discrimination in the world of work.
Redundancy Reductions
According to article 140 of the Labor Code of the Russian Federation, upon termination of labor relations with an employee, the organization’s management must settle accounts with it and pay all the money laid down. Payments must be made after the employee submits the relevant request no later than the next day.
If an employee is fired due to layoffs, he must receive a severance pay equal to the average monthly earnings. Within two months, the employee is paid severance pay while searching for a suitable job. This payment can also be made for the third month if the dismissed employee contacts the employment service within 14 days after the termination of the employment contract and does not find a suitable job.
Additional compensation is paid to employees who have been reduced without warning and in consultation with the employer. The size of the payment is determined by the sum of the average monthly earnings, calculated in proportion to the time remaining before the expiration of the term for the warning about the reduction. Pensioners, as mentioned above, are paid all compensation, as well as ordinary workers. The head, his deputies, the chief accountant are paid compensation in the amount of at least three average monthly salaries.
In addition, employees laid off due to staff reductions are entitled to pay for days worked in the current month and compensation for unused vacation days.
The amount of the severance pay may be challenged. In this situation, the organization pays the employee an uncontested portion of the amount. The remaining part is paid based on the agreement of the employee and management or by decision of the court.
Alternative
An alternative to the dismissal of workers to reduce is the termination of employment by agreement of the parties. This is, first of all, beneficial for the employer, since he is exempted from paying additional compensation and severance pay, the probability of appealing the procedure to the court is minimized, there is no need to notify the union, the employment service. In addition, the list of those who cannot be dismissed due to layoffs does not apply to this procedure.
Often, employers force their employees to quit at their own request. Thus, the employee also loses the severance pay and compensation that he is entitled to during the reduction.
Employer Responsibility
Employers are liable for violation of the rules for the dismissal of employees while reducing the number of staff. In case of violation of the terms of payments, according to article 236 of the labor legislation, the employer is obliged to reimburse, in addition to the entire amount owed to the employee, interest that is at least one three-hundredth of the Central Bank of Russia refinancing rate for each day of delay. The same sanctions apply to employers in case of delayed payment of wages. If the employer does not fulfill the obligation to provide dismissed employees with vacant positions at the enterprise, this threatens him with a fine of 5-50 minimum wages in accordance with article 5.27 of the Administrative Code.
What to do when cutting
If you were fired for reduction, what should I do? You can contact several instances. To begin with, you can send a written application to the trade union organization of the enterprise. The union is required to respond to the complaint within a week. An incident with the wrongful dismissal of a reduction may be considered by the Federal Labor Inspectorate and the prosecutor's office. If the trade union organization and the labor inspectorate have not found any violations of the procedure, you can file a lawsuit. This can be done in the 90-day period from the moment the employee learned about the violation of his labor rights. If the dismissed employee decided to challenge the termination of the employment contract, the statement of claim must be filed within 30 days from the date of issuance of the work book or a copy of the relevant order. Unlawfully dismissed employees do not pay duties and other legal expenses. Upon recognition of the dismissal of the reduction as unlawful, the employee shall be reinstated at the previous workplace by the authority that was authorized for the consideration of the labor dispute. In this case, the employee is compensated for the average wage during the forced absence or the difference for the period of the low-paid work, as well as moral damage.
Dismissal due to a reduction in the number of employees in the organization can affect everyone. Therefore, it is so important to know the list of those who cannot be fired due to layoffs and who have the pre-emptive right to preserve their jobs. These issues are fully regulated by Russian labor law. The decision of the employer to dismiss the reduction may be challenged both in court and when applying to the trade union, prosecutor's office, the Federal Labor Inspectorate. Russian labor law governs the rights of a laid-off redundant. If you encounter difficulties, you should seek the help of a competent lawyer.