Art. 179 TC RF with commentaries. Who has the pre-emptive right to stay at work

Dismissal at the time of reduction is not uncommon at all. In connection with this, the worker needs to be literate in reducing matters, in particular, to know in which cases the employee has the right to leave at work.

Criteria for resolving the issue of reduction

When studying this issue, it is worth turning to art. 179 TC RF with comments, according to which the pre-emptive right to leave at work with reduction is given to employees in accordance with two criteria: productivity and qualification.

In order to avoid unforeseen consequences, in particular claims from dismissed employees, the employer should make an objective picture of the qualifications and achievements of employees subject to further reduction.

When deciding on the value of qualification, the employer should use the approved Qualification Handbook of posts, with the help of which the position of the employee in an organization is determined. In the absence of a position in the directory, the provisions of the labor and collective agreements should be evaluated. The evaluation is carried out in a complex way: the work record, family status, education level, and the presence or absence of disciplinary sanctions are taken into account.

However, in some cases, the employer does not have an obligation to identify advantages.

Evaluation procedure

Sometimes the employer does not have a prescribed duty to assess the qualifications of the employee. For example, with the reduction of the posts of the whole structural part, the department, as there is no one to compare - the department completely disband. If the dismissal occurs for a particular position, then the reduction is considered mandatory. Non-compliance with the evaluation procedure usually ends with the court restoring the employee to the organization, so it is in the employer's best interests to conduct this procedure with particular care. At the same time, the choice of how to establish the value of employees remains with the auditor.

Commission for assessing the professional level of employees

In such a situation, a special commission is set up at the enterprise to determine the pre-emptive right to leave at work, this form is most preferable for the courts of the Russian Federation. The commission is made up of cadres, heads of divisions from which dismissal is carried out, members of the trade union and lawyers (in the absence of such a position in the organization, an additional legal advice will be the best solution 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 head, like no one else, knows how to characterize an employee, a lawyer can competently draw up a legal opinion, the personnel officer is best acquainted with the personal matter of the employee.

Any commission draws up a meeting of the protocol, reflecting in it the main data: information on those present and absent, questions on the agenda, applicants for reduction, full information about the employees and the decision of the commission.

A convenient form for the analysis will be statistical cards or comparative tables, compiled according to certain criteria.

Evaluation criteria for identifying benefits

The employee is usually judged by experience and quality of knowledge. As objective indicators, compliance with production standards, performance of target indicators, individual tasks is considered.

Qualifications, experience, and skills of the employee refer to the attributes of qualification. The assessment also takes into account the level of education, the availability of additional characteristics, the quality and scope of the work done, taking into account penalties and rewards 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 LC RF. With the comments of the court it becomes clear on which way the practice is going, how advantages are revealed in the reduction.

Records of experience with dismissal

The professional way of the employee is directly reflected in such a document as the work book. The procedure for confirming the length of service is regulated by two laws - "On Labor Pensions" and "On Individual Personalized Accounting". Also in this area are the "Rules for calculating and confirming the length of service for fixing labor pensions" (22.07.02, Government Decision No. 555), "On the procedure for confirming the length of service for pensions" (24.08.90, Resolution No. 848).

Confirmation of unaccounted experience (for example, when you lose a book or a combined work) can be done with the help of labor contracts, director's orders, certificates. Periods of work under a civil law contract can be evidenced both by the agreement for the provision of services, and by payment documents. Also, you can find out about your seniority by making an appropriate request to the pension fund bodies, if you have military tickets, certificates from commissariats, archives, divisions. Quite an extreme option - during disasters and catastrophes, periods of work are confirmed by witness testimony.

With the development of electronic databases, the system of personalized accounting has also been improved - in recent years all information has been translated into digital format, services like "State services" have been created.

In any case, when considering a single candidate, the norms of Art. 179 TC RF, with comments to which the employer should be familiarized in advance in order to remember that the length of service is not the most weighty argument in granting the right to remain with the reduction.

Accounting for education and professional qualifications

Proceeding from the provisions of the Federal Law "On Education", the qualification is confirmed by diplomas, certificates, certificates. Documents are usually presented both at the time of entering the workplace and in the event that a commission is already organized, and the availability of a diploma or certificate may affect the decision to leave the employee at work. But if, according to the handbook, a special education is not required for a particular post, then the existing certificates of completion of education 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 TC RF, with the comments to which it is important to understand, one of the criteria for determining the benefits is the productivity of labor. In order for the dismissal to be legitimate, it is necessary to collect documents that could confirm in court that an employee performed more complicated work than his colleagues or took additional work, that is, he executed orders of a larger size, which is easily confirmed by agreements or orders .

The most convenient way of comparing is the use of tables, forms, in which each task and result is entered for a certain period of time. Such a record requires the employer to be accurate, from a career worker - effective work throughout the entire time. Among the factors affecting productivity, there are also disciplinary penalties and incentives.

Categories of workers whose dismissal is prohibited by law

There are a number of employees whose dismissal is forbidden even considering that their performance and qualifications are not so high. This is primarily women with children or just waiting for them: pregnant women, with children under 3 years old, single mothers with children under 14 years old.

In this case, the Supreme Court in 2014 determined that single women are recognized by those who raise a child without a father in connection with death, being in prison or depriving parental rights.

Categories of employees who have the advantage of equal qualifications

Part 2 of Art. 179 of the LC RF indicates a list of employees who have advantages in equality in assessing their qualifications and work: they are employees who have two or more dependents on their maintenance; Citizens who have received labor injuries or diseases associated with a harmful and dangerous profession; People who received disability as a result of military campaigns related to the defense of the Fatherland; Disabled veterans of the Great Patriotic War; Employees who undergo refresher courses on the instructions of the employer on the job, as well as employees who are the only breadwinners in the family.

Permissible errors in the reduction

Among the mistakes made by the employer and leading to violations of the law, it is possible to include decisions on dismissal in the absence of evidence of insufficiently high qualification, ignoring the norms of the collective agreement, the non-application of the norms of Part 2 of Article 179 of the LC RF. Judicial practice also dictates that when choosing a candidate from employees who have equal conditions and belonging to the categories of Part 2 of Article 179 of the LC RF, it is necessary to apply the sequence specified in the law. Thus, persons with dependents will have priority over citizens with disabilities.

In time, the legal advice received will help to eliminate the occurrence of problems with the law and avoid the employee's recovery in cases where the relationship with him has already been spoiled.