Who can not be dismissed for staff reduction: RF TC

The loss of work is the biggest problem that can be caused by the financial and economic crisis. To exit from a difficult financial situation, organizations resort to optimizing the production process. In the framework of optimization, the number of employees is often reduced. Who can not be dismissed for reduction? What rights does a shortened employee have? What responsibility is the management of the organization?

What is the staff reduction?

Reduction of the staff of employees is a procedure for the abolition of posts (one or several), conducted in accordance with labor legislation. One of the methods to reduce the number of staff units is the liquidation of vacancies. The staffing table is the main evidence supporting the reduction in the number of employees. If there is no staffing in the organization, then a payroll or list of employees can also act as a confirming document.

Legal staff reduction

Russian labor law regulates the procedure and determines the grounds for the reduction of employees. So, the employer can dismiss employees due to a decrease in the number of staff units, reorganization or liquidation of the enterprise. In this case, the employer determines the optimal number of employees of the organization. Under the law, the employer is not obliged to justify the decision to dismiss the reduction officer , but formally the procedure should be carried out on the basis of the LC of the RF (Articles 82, 179, 180, 373). To dismiss an employee of an organization because of the reduction in the number of employees is possible only when the post he takes up is liquidated.

Illegal staff reduction

In practice, there is often an improper (imaginary) reduction in staff, which has no real reason. This procedure is illegal. Employers resort to this method when they need to fire an employee, but there are no real grounds for this. If the procedure of termination of contracts is incorrectly performed or if it is not observed, the reduction is also considered illegal. Rights dismissed in this case can be defended in court. However, in practice it is quite difficult to convict of the illegal actions of employers.

How to dismiss the reduction

This procedure consists of several stages.

1. The launch of the procedure for reducing the number of employees must be formally confirmed by the appropriate order and the approval of the new staffing table. At the same time, the new schedule is approved before the procedure starts. Those who are dismissed will be those whose position has not been preserved in the new staffing table.
2. Article 81 of the Labor Code regulates the next stage of the procedure. At least 2 months before the planned date of termination of employment contracts with employees, the employer must without fail send a corresponding notice in writing to the trade union organization.
3. At least 2 months before the dismissal of employees due to the reduction of staff, the employer is obliged to warn the local employment service in writing. The notice must include the position, specialty, profession and qualification of each individual employee. The employment service should be informed of the planned reduction in the organization's staff at least 3 months if the procedure can provoke mass layoffs.
4. 2 months before the scheduled date, the employer must inform his employees about the reduction under the signature. When an employee refuses to sign a warning, the personnel department draws up an appropriate act.
5. The employer must offer employees an alternative - vacant positions in their own or other companies. If in the period of prevention in the organization there are vacancies, the employer should first of all offer them to employees who fell under the reduction. If there are vacancies in the organization within a two-month period, the manager notifies the staff being reduced and does not accept new ones. When selecting vacancies, the qualification and health status of the employee must be taken into account. With his consent, the transfer procedure is started. In the first place, similar jobs are offered. The management of the enterprise has the right to dismiss the employee and without warning on the preliminary agreement of the parties, which is made in writing. In this case, the injured party is paid additional monetary compensation, the amount of which is not limited by legislation and depends only on the arrangement on the spot.
6. The company's management issues an order to dismiss employees, which indicates the date and reason for the termination of the employment contract. Workers get acquainted with him against the signature. If the employee refuses to sign the order, an appropriate act is drawn up.
7. Dismissed employees on the last working day count, issue a work record with the corresponding entry. When dismissing employees who are members of a trade union, the motivated opinion of this organization should be taken into account (Article 81 of the RF Labor Code, as well as 82 and 373). The dismissal of persons not older than 18 is allowed with the consent of the State Labor Inspectorate and the Commission for the Protection of the Rights of Minors.

Who can not be dismissed

In the Russian labor legislation there is a list of those employees who can not be dismissed for staff reduction. Who can not be fired?

• Women with children under 3 years old.
• Women who are on parental leave (TC RF, 256 articles).
• Single mothers with children under 14 years of age (if the disabled child is under 18).
• Persons bringing up children under the age of 14 without a mother (if the disabled child is under 18, Article 261 of the Labor Code of the Russian Federation).
• Employees of organizations on leave or on sick leave.
• Minors without the consent of the State Inspectorate for Labor.

Also, according to the Labor Code of the Russian Federation (256 articles), parental leave can be granted until the child reaches the age of 3 at the request of the mother. The workplace and position in this case are reserved for the woman.

Can a pregnant woman be dismissed on the basis of a reduction? Such dismissal is considered illegal. As stated in Article 261 of the LC RF, dismissal is permissible only when the organization is liquidated.

The only exception is cases where the reduction takes place within the liquidation of the enterprise.

Who has the advantages?

In addition to the list of those who can not be dismissed from the staff reduction, the Labor Code also has the concept of "pre-emptive right". According to article 179 of the TC, this right gives employees of organizations the advantage of preserving the workplace with a reduction in staff, depending on the quality of their work duties or social causes. These workers are dismissed last.

The pre-emptive right is possessed by workers with a high level of qualification and productivity of labor. Work experience and education are also taken into account. The qualification must be supported by the documents on the completion of educational institutions, certificates on raising the level of qualifications, extracts from the protocols of commissions on assigning a category or grade, etc. To assess the level of qualifications of employees, enterprise management can conduct attestation, including unscheduled. However, the order of carrying out such appraisals should be reflected in the internal documents of the organization. If all employees have equal qualifications and labor productivity, the head takes a decision on dismissal together with the trade union organization.

The pre-emptive right to preserve the workplace is also enjoyed by the employees:

• Containing two or more dependents (family circumstances).
• Who independently maintain their own family (there is no other source of income other than the salary of this employee).
• Malfunctions or occupational diseases received by the employer who performs the reduction in the period of performance of labor obligations.
• Disabled war.
• Raising qualifications without disruption from the labor process in the direction of management.

The collective agreement may also establish other categories of employees who have the pre-emptive right to preserve the workplace.

Features of the dismissal to reduce retirees

Often in the Russian organizations work and people who have reached retirement age. However, age is not the reason for the first reduction. Article 179 of the TC states that age can be an advantage of the employee, since it can be an indicator of high skill and productivity.

Article 178 of the Labor Code says that all guarantees and payments should be provided to retirees upon dismissal for reduction. Other interpretations of these legislative provisions contradict the principles of equality of workers' rights and the absence of discrimination in the world of work.

Payments of those who have been dismissed for redundancy

According to article 140 of the Labor Code of the Russian Federation, upon termination of employment relations with the employee, the management of the organization must settle accounts with it and pay all the money. Payments must be made after the employee submits a relevant request no later than the next day.

If an employee is dismissed for staff reduction, he is sure to receive severance pay, the size of which is equal to the average earnings per month. Within two months the employee is paid severance pay for the time of finding a suitable job. This payment may be made for the third month if the dismissed employee applies to the employment service within 14 days after the termination of the employment contract and does not find suitable work.

Additional compensation is paid to employees who have been reduced without warning and in consultation with the employer. The amount of payment is determined by the sum of the average monthly earnings calculated in proportion to the time that remained before the expiry of the warning period for the reduction. Pensioners, as already 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 not less than three average monthly salaries.

In addition, employees who are dismissed due to the reduction in the number of staff, are paid for the 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 unpaid portion of the amount to the employee. The remaining part is paid on the basis of an agreement between the employee and the management or by a court decision.

Alternative

An alternative to the dismissal of workers to reduce is the termination of employment relations by agreement of the parties. This is primarily beneficial for the employer, since he is exempt from the payment of additional compensation and severance pay, minimizes the likelihood of appealing the procedure in court, there is no need to alert the trade union, the employment service. In addition, the list of those who can not be dismissed for staff reduction, this procedure does not apply.

Often, employers force their employees to leave their own volition. Thus, the employee is also deprived of severance pay and compensation, which he relies upon in the reduction.

Liability of the employer

Employers are responsible for violating the rules of the procedure for dismissing employees with a reduction in the number of staff. If payment deadlines are violated, according to article 236 of the labor law, the employer is obliged to compensate, in addition to all the money due to the employee, interest that is not less than one-hundredth of the refinancing rate of the Central Bank of Russia for each day of delay. The same sanctions apply to employers in case of delay in payment of wages. If the employer does not fulfill the obligation to provide vacant positions to the dismissed employees, this threatens him with payment of a fine of 5-50 times the minimum wage according to Article 5.27 of the Administrative Code.

What to do when cutting

If you were fired for a reduction, what should you do? You can apply to several instances. To begin with, you can send a written application to the trade union organization of the enterprise. The trade union must respond to the complaint within a week. Incident with wrongful dismissal for reduction can be considered by the Federal Labor Inspectorate and the Prosecutor's Office. If the trade union organization and the labor inspectorate did not reveal any violation 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 has decided to challenge the termination of the employment contract, the claim must be filed within 30 days of the issuance of the work record or a copy of the relevant order. Employees who have been dismissed illegally do not pay duties and other legal expenses. When recognizing a dismissal to reduce the wrongful, the employee is reinstated in the former workplace by the body that was authorized to handle the labor dispute. Employee in this case, compensate for the average salary for the time of forced absenteeism or the difference for the period of performance of low-paid work, as well as moral damage.

Dismissal due to the reduction in the number of employees in the organization can affect everyone. Therefore, it is so important to know the list of those who can not be dismissed from the staff reduction and who has the pre-emptive right to preserve the workplace. These issues are fully regulated by Russian labor legislation. The employer's decision on dismissal for reduction can be challenged both in court, and when applying to the trade union, the prosecutor's office, the Federal Labor Inspectorate. Russian labor law regulates the rights of a staff member who has been dismissed from the state. In the event of difficulties, you should seek the help of a competent lawyer.