Termination of employment due to a reduction in the number / staff of employees is one of the legislatively established measures aimed at optimizing the personnel of the enterprise. Meanwhile, termination of the contract on this basis is considered the most difficult.
General order
The dismissal procedure for reduction consists of the following steps:
- Issuing an order.
- Notification of employees, offering them vacant places.
- Trade union and employment center notice.
- Direct dismissal.
During the procedure, the tenant must be guided by the norms of the Labor Code of the Russian Federation (Articles 179, 180, etc.).
Order
The staff reduction order and the staff reduction order are different documents. They are accepted at various stages of the release procedure.
The standard form of the staff reduction order has not been established. When making it, it is necessary to be guided by the general rules of office work.
Any order concerning the dismissal of staff reductions should include the date of the proposed activities. It also contains staffing changes.
Notification
Employees subject to reduction must be notified within 2 months. before the start of personnel changes.
The notice should be addressed to each employee. Workers, in turn, get acquainted with the contents of the document. The fact of familiarization with the notification is confirmed by the signature of the employee.
Important point
The Labor Code of the Russian Federation in article 180 obliges the employer to offer a job title to the employee being reduced. The notification shall indicate its name (if there are several, then all are listed). During the entire period of notice (2 months), the employer is obliged to offer emerging vacancies.
The employee, in turn, may agree to a new position or refuse further work. Moreover, he may not sign the notice. In this case, however, the tenant will draw up an act.
If an employee agrees to a new position, a transfer is executed. If the employee refuses the vacancy, the contract is terminated in accordance with paragraph 2 of the first part of part 81 of the article of the Labor Code.
Trade union notice
If a union exists, it must be notified without fail. It is worth saying that for quite a long time there were disputes about the timing of the notice. Clarity in the matter was introduced by the Constitutional Court of the Russian Federation. As the court explained, the union must be notified in 2 months. before the dismissal of employees. If personnel changes can lead to mass dismissal, then the notice period of the trade union is increased by 1 month, that is, 3 months.
Similar rules apply to notice of employment services. In general, a body needs to be notified in 2 months, and in case of a threat of mass release - in 3 months.
Preferential Rights of Employees
About them it is spoken in Art. 179 of the Labor Code of the Russian Federation .
In determining the pre-emptive right, 2 criteria are taken into account. First of all, according to Part 1 of Art. 179 of the Labor Code of the Russian Federation, is an indicator of labor productivity and qualifications. Secondly, certain circumstances related to the personality of the employee are taken into account. Their list is given in the second part of Art. 179 of the Labor Code of the Russian Federation .
Nuances
As follows from the provisions of Article 179 of the Labor Code of the Russian Federation, the level of qualification and high productivity are considered unconditional criteria in comparison with other factors.
Meanwhile, it should be borne in mind that the rules of some other norms of the Code correct the imperative nature of the above article.
First of all, TC fixes a number of circumstances, the presence of which makes the termination of the contract with the employee on the initiative of the employer impossible. Thus, the release of an absent employee is not allowed in connection with a vacation or a sick leave. An exception is provided only for cases of liquidation of the enterprise and the termination of the IP.
It is forbidden to terminate the contract with pregnant women, single mothers, employees who are dependent on minors (under 3 years old), workers raising children under 14 years old or disabled children under 18 years old, other persons raising a child without a mother.
Secondly, the termination of legal relations with certain categories of employees is permitted only with the consent of the competent structure. For example, the termination of the contract with a minor employee is carried out with the consent of the state labor inspectorate and the Social Security Commission (commission for minors).
Thirdly, the dismissal of heads / deputies of elected collegial structures of primary trade unions, as well as trade unions of structural divisions of the enterprise (equivalent to the shop floor or not lower than them), not exempted from work, is permitted only with the consent of a higher trade union organization.
From the above it follows that the guarantees provided for a number of categories of employees or operating under certain conditions exclude the application of the rules enshrined in Art. 179 of the Labor Code of the Russian Federation .
Additional circumstances
Analyzing Art. 179 of the Labor Code of the Russian Federation with explanations of lawyers, it should be noted that experts pay attention to the closed list of part 2 of the commented norm. The provisions of the article do not refer to any other legal requirements. Given this, it is necessary to consider the rule enshrined in the Federal Law No. 76, which regulates the status of military personnel.
According to the normative act, for citizens discharged from service, as well as their relatives, a preemptive right is established to maintain a job when they are reduced, if they entered the enterprise for the first time.
As evidenced by judicial practice under Art. 179 of the Labor Code of the Russian Federation, instances when considering disputes are guided by the fact that in the presence of contradictions between the Labor Code and other federal regulatory acts, the provisions of the Code are subject to application. The above rule with respect to military personnel does not apply until the relevant adjustments to article 179.
A similar conclusion follows with respect to other categories of employees whose pre-emptive right is enshrined in other laws.
Collective agreement
In part 3 of article 179 of the Labor Code, it is stipulated that the categories of workers who can exercise the preemptive right may be fixed in a collective agreement. At the same time, the employer can only supplement the content of the commented norm.
The provisions of the collective agreement cannot change the sequence and composition of the list enshrined in Part 2 of Art. 179 of the Labor Code of the Russian Federation. Judicial practice and in this matter is quite clear. When considering disputes, the authorities, among other things, are guided by the general principle of labor law on the inadmissibility of discrimination of workers.
List of Part 2 of Article 179
With an equal level of skill and productivity, preference for leaving the company is given to:
- Family employees with two or more disabled relatives who are fully supported by employees who receive assistance from them, which is the only and constant source of funds.
- Employees in whose families there are no other persons with independent earnings.
- To employees who received occupational disease or injury during the course of their employment at the enterprise.
- Disabled WWII and other military operations to defend the country.
- Employees who improve their skills on the job.
Severance pay for reduction
Art. 179 of the Labor Code of the Russian Federation establishes guarantees for a number of categories of workers. Are there guarantees for those employees who are not covered by the provisions of this article? Of course there is.
TC fixes the obligation of the employer to pay employees dismissed in connection with the liquidation of the organization or reduction, the severance pay equal to the average monthly salary. In addition, the employee at the time of joining another company retains his average earnings. However, this period should not exceed 2 months. In exceptional cases, the period may increase by 1 month.
To receive payments there is no need to provide documents. It is enough to write a statement.
Payment of benefits is carried out on the day of dismissal. If for some reason a citizen was absent from work, payment is made the next day.
The calculation of the amount is made taking into account the rules of article 139 of the Labor Code. To determine the amount of payment, you need to take the start and end dates of the period, calculate the number of days / hours to be paid. Based on the results, the average daily / hourly amount is calculated. The calculation should be made for 12 months before the period of dismissal.