Many workers are faced with a situation in which you could be laid off, especially now when the economic situation in the country is somewhat unstable. From the moment an employee is told that he will be laid off, he has a lot of questions in addition to where to look new job: Are there any payments due? If yes, in what size? What if I am a pensioner or a pregnant woman? How should the dismissal procedure proceed?

Staff size optimization

First, you need to understand the basic theoretical issues that the reduction procedure raises.

It is necessary to clearly understand the difference between downsizing and downsizing. Thus, the number of employees is recognized as the entire payroll of employees of a particular enterprise. If we are talking about downsizing, then the number of employees in a certain position is reduced. For example, it is necessary that there are two engineers at the enterprise instead of the currently available ten.

The staff usually includes all management and administrative employees at a particular enterprise. When reducing staff, identical positions or employees of the entire unit being reduced must be excluded from the staffing table. When it comes to reducing a certain staffing position, it is not just one employee who quits, but everyone who, according to the staff schedule, performs work in a certain position.

Legislative grounds

If the enterprise has a question about the need to reduce the number or staff of employees, then on the basis of paragraph 2 of paragraph 1 of part 81 of Article 81 of the Labor Code of the Russian Federation, this is the determining factor for early termination employment contract with specific employees.

To begin the dismissal procedure on this basis, you must make sure that all actions are carried out within the framework of the law, i.e. the employer is obliged to refer to the fact that the company really needs to make reductions.

In addition, in accordance with Article 179 of the Labor Code of the Russian Federation, it is necessary to respect the right of some employees (for example, a pregnant woman and those who have higher qualifications) and the order of reduction. It is imperative that an employee who is notified of an upcoming layoff must be provided with alternative vacancies (if any at the enterprise) taking into account his abilities, qualifications and health status.

In accordance with ruling of the Constitutional Court of the Russian Federation dated December 18, 2007 for serial number 867, no employer is required to justify in any way its decision that it needs to make a reduction. He independently makes decisions that he considers economically beneficial for his enterprise. Third-party organizations, primarily the court when making a decision on the complaint of a dismissed employee, cannot decide whether it was necessary to reduce personnel. For example, the court is only authorized to resolve the situation regarding the legality of the dismissal procedure. In practice, there are often cases when in court the employer still has to justify his decision and refer to certain documentation of the organization.

Payments upon dismissal of an employee

In accordance with current labor legislation, an employee must be notified of an upcoming layoff at least two months before the day on which his actual dismissal occurs. A special order is issued about this, which is read to the employee against signature, indicating the date of familiarization.

In the case where the employee to be laid off has read the document, but categorically refuses to sign it, a special document must be drawn up that reflects this fact.

During the period from introduction to dismissal, the employee must be offered other available positions in accordance with his skills and abilities. If he refuses the proposed options, then after two months employment contract is terminated. The next stage after termination is the final settlement with the employee.

Severance pay

Severance pay, as well as other payments, must be transferred to the employee on his last working day. The same time is set for the transfer of the work book.

What does it represent severance pay upon dismissal? This is the payment of a certain amount of money to a dismissed employee from an enterprise that optimizes the number of employees through a reduction procedure.

Severance pay includes the amount of average monthly earnings, taking into account additional deductions.

The employee is also entitled to similar amounts for the next two months after dismissal until employment (calculation is made taking into account the amount of severance pay). In exceptional cases, the employee will be paid for the next three months after dismissal (within 2 weeks from the date of official dismissal, the employee registered with the labor exchange).

Amounts due to the employee as severance pay, on the basis of paragraph 3 of Article 217 of the Labor Code of the Russian Federation, are not subject to taxes, except for the case when the amount of payments exceeds 3-month average earnings.

The calculation of average earnings due for payments is made on the basis of Article 139 of the Labor Code of the Russian Federation, as well as the Decree of the Government of the Russian Federation, dated December 24, 2007, serial number 922. For the calculation period, 12 calendar months preceding the day of dismissal. When the average is calculated, a person's entire earnings are taken into account based on how much they were actually paid.

The amount of average earnings must take into account:

1. Premiums and bonus payments, rewards. No more than one type of additional remuneration per month during the calculated period is taken into account. If there are more bonus amounts, then you can take them into account in the month where there were none;
2. Remunerations based on the results of the year, in connection with length of service, length of service, etc.;
3. Other payments included in the monthly salary.

The main rule for calculating the amount of average earnings: it should not be below the minimum subsistence level established in the country on the day of dismissal.

If the employee subject to redundancy has not worked for 12 months at this enterprise, then the entire period of service must be taken into account when calculating the amount. If the work time was not even one month, then for the calculation it is necessary to take the amount of his tariff rate or official salary.

The following periods are not taken into account when calculating average monthly earnings:

1. when the employee did not receive the entire amount worked, but only the average payment for his work (such periods cannot include the time when a woman, in accordance with the Labor Code of the Russian Federation, can leave workplace for feeding a child);
2. time sick leave, as well as social leave provided in connection with pregnancy and childbirth;
3. when the employee was not at work due to circumstances beyond his control;
4. when there was a strike (the employee did not participate, but could not work);
5. additional time provided to a person to care for a disabled child;
6. time when the employee was not at his workplace for any other reason.

The amount of earnings includes all payments from the employer, including bonuses, products in kind, as well as other payments.

Compensation

Severance pay is not the only amount a person will receive upon dismissal. So, he is entitled to some additional compensation.

For example, if an employee notified according to the rules expresses a desire to leave the enterprise early, he informs the employer about this, and he, in turn, must calculate an additional amount in the form of compensation for the time that he did not use after the notification. Those. If the dismissed employee worked for 5 days after notification (instead of 2 months) and expressed a desire to be dismissed earlier, he must receive additional compensation in the amount of average earnings for the time not worked until the end of the notice period in the case where the employer agrees to let him go in advance. Also, be sure to make sure that you are paid for the time worked in the company, as well as unused vacation(unless it was actually used).

Second and third month

If you were laid off due to a reduction in headcount or staff, then know that you have the right to maintain your average earnings for the next two months after the day you were officially laid off. This rule applies until official employment, but no more than two months after dismissal. Thus, an unemployed person has some guarantees provided for him by the state, in order to provide him with a certain amount of money until he gets a new job.

If the employee within two weeks After being fired, he applied for a job at the Employment Center, then he can count on another extra month of subsidies from his former employer (if he did not find a job).

The decision to extend the period is made by the Employment Center, and payment is made at the expense of former employer. This kind of additional benefit remains until the person is officially employed (during these 2-3 months). As soon as a citizen finds a new job, payments stop. If a person starts a new job in the middle of the month, then the previous employer only reimburses unemployed time.

For pensioners

Persons who have reached retirement age and those who were laid off, the Labor Code in 2019 does not provide for any specifics regarding payments.

So, a dismissed pensioner can count on:

1. Severance pay, which is equal to average monthly earnings. In case local normative act employer has several larger size, then the pensioner should receive exactly this amount.
2. Compensation for average earnings for two (three) months while searching for a new job.

We remind you that reaching retirement age is not the main criterion for dismissing such employees in the first place.

By law, they have exactly the same rights to further work or payment of benefits in the event of layoffs as other employees. In addition, people who have reached retirement age have higher qualifications and productivity, which, on the contrary, can be considered a positive factor against the reduction of such an employee.

How to get it?

Registration

Based on current legislation, all settlements with the employee regarding remuneration for time worked and severance pay must be processed and made on the last day of work of the employee subject to staff reduction. Moreover, before this day he must submit a bypass sheet drawn up according to the rules with information that he has no debts to the enterprise.

In order to receive amounts due in the next two (three) calendar months after dismissal, it is necessary, at the end of the month during which the dismissed employee did not find a new job, to contact the former employer for a settlement.

In this case, the employee must confirm his words with documents (provide a certificate from the Employment Center, show his work record book). Only after this can the settlement department employee begin processing payments. If such documents are not provided, no compensation will be provided.

Where are they paid?

All payments due to an employee who has been laid off are paid by the employer at the employee’s previous place of work.

So, if it is necessary to compensate for the time spent searching for a new job within two calendar months after dismissal, then you must submit the relevant documents to the department responsible for payments at the previous place of work from which the person was dismissed.

If you need to make payments for the third month, you must contact the same employer, but you must have a certificate from the Employment Center with you. IN modern world It is very important to know your rights, especially if they affect the sphere of labor relations, since employers often take advantage of the illiteracy of their employees. If you have been laid off and don’t know what to do and how to go through this procedure, then contact a competent lawyer who will help you and tell you what to look for when laying off, and also indicate what payments and rewards you can count on.

Job loss is almost always unpleasant event. But it's one thing when former employee they see off with honor and gratitude for the work done, and another thing is when the dismissal occurs due to problems in the company itself, and even in a fraudulent way. Unfortunately, more than half of modern organizations commit the second type of dismissal. And naive citizens allow the leadership to violate their rights. To prevent this from happening, you need to know at least the basic nuances of the procedure for leaving work. IN in this case We will consider what the procedure for dismissal due to staff reduction should be.

Dismissal due to reduction - reminder to employees

The layoff procedure for staff reduction is a headache for many companies. Loopholes that can facilitate this process, reduce costs and bypass labor code are looking for in almost every organization. And unfortunately, they are often found. To prevent this from happening, it is worth taking note of how the redundancy dismissal procedure should actually take place.

1. Any company must present to its employees notice of dismissal due to reduction no later than two months before the staff reduction itself occurs. In addition to the general meeting and information at the stand, the organization’s leaders must convey information to each employee personally and receive his confirmation with a signature.

2. The conditions for dismissal due to reduction consider the option in which management can offer an employee deprived of a position other vacant positions corresponding to his experience and qualifications. But most often this does not happen, because employees are not aware of the existence of such a responsibility of their management.

3. Another important nuance that you need to pay attention to is early dismissal due to staff reduction. This situation arises when an employee who has been laid off expresses a desire to resign ahead of schedule due to taking a new job. In this case, the organization has no right to interfere with the employee. As for compensation, the employee has the right to count on additional payment in the amount of average earnings calculated in proportion to the time remaining before the expiration of the notice period for layoffs.

4. Payments upon dismissal due to reduction. If the corresponding entry is made in the work book, the employee receives the following compensation upon dismissal due to reduction:

1. Not later last day work, the employee must receive a payment in the amount of salary for the last month of work + compensation for all unused vacations
2. Along with the settlement, the employer is also obliged to pay severance pay in advance for the first month of unemployment of the employee. If an employee does not find a job within two months, the employer is obliged to pay another benefit in the amount of average monthly earnings. Provided that 14 days after dismissal the employee registered with the Employment Service but 3 months after the layoff still found work, he is entitled to another severance pay upon dismissal due to layoffs and temporary unemployment.
3. Benefits upon dismissal due to reduction. If an employee who has been laid off and registered with the Employment Service has not found a job within 3 months, starting from the first day of the 4th month of unemployment, he is entitled to receive benefits. It will be paid by the Employment Service in the following order:

• starting from the fourth month after dismissal due to reduction and the next 3 months: 75% of average monthly earnings;
• next 4 months – 60% of average monthly earnings;
• from 8th to 12th month – 45%.

Also, an employee who has been laid off due to reduction has the right to:

In order for all of the listed benefits to be available, an employee dismissed due to staff reduction must contact the employment service at his place of residence within 14 calendar days from the date of dismissal.

If the conditions of dismissal due to reduction described above were violated by the employer, the employee has the right to go to court. The law will always be on the side of the employee, no matter what country he is in. Every person is obliged to know his rights, and for this it is at least sometimes worth looking into the labor code.

Practicing lawyer and economist, director of KPC Dialog Consulting LLC, member of the National Union of Personnel Officers of Russia, expert reviewer of the Consultant Plus Union of Right Forces.

Seminars by M.V. Cherenkova are primarily recommended to heads of personnel management departments, managers, and specialists structural divisions participating in the development of collective agreements, local regulations, organizational and administrative documents, remuneration systems, and in resolving labor disputes.

Education

• 1986-1991 — Novosibirsk Institute of Soviet Cooperative Trade; specialty: "Trade Economics";
• 1992-1993 — International school managers (Moscow); specialty: "Foreign economic activity";
• 1997-2002 — Law Institute of Krasnoyarsk state university(currently - YuI SFU) with honors; specialty: "Jurisprudence".

The lecturer’s largest seminar was held in Novosibirsk in April last year (298 people) on the topic: “Latest changes labor legislation RF: review of innovations, analysis of practice."

The most popular workshop of 2015: "Effective contract: key points of the transition period" — organizers: CJSC "Quadro Plus" (Kemerovo), LLC "Corporate Training Center" (Kemerovo), UMC "Union of Industrialists" (Barnaul), ANO DPO "STsPR" (Krasnoyarsk), LLC "KPC "Dialogue Consulting" (Krasnoyarsk).

Over 15 years of work in the field of labor law, M.V. Cherenkova prepared 35 training programs, which were attended by more than 10,000 people in different cities of the country (Krasnoyarsk, Lesosibirsk, Minusinsk, Sharypovo, Kansk, Achinsk, Arkhangelsk, Velsk, Severodvinsk, Vologda, Perm, Irkutsk, St. Petersburg, Novosibirsk, Kemerovo, Novokuznetsk , Barnaul, etc.).

In 2014, the first book by M.V. was published. Cherenkova "Work book: complex issues of management" (Mysl publishing house, Novosibirsk, circulation 5000 copies).

Currently, work continues on the second book with the working title: “Personnel documents of the organization: we prepare them correctly.”

Sometimes the reason for the dismissal of one or more employees of an enterprise is not the decision of the employer or the employee himself, but an objective necessity. The situation may be related to the transition to a new (automated) level of production or to the fact that the organization no longer needs the same number of employees. In such cases, there is a reduction in the number or staff of employees.

For the employer, this becomes a legal tool that allows optimizing the composition of personnel and the structure of the staffing table. However, the use of such a technique is associated with a large number of nuances and requires compliance with many rules.

Basic concepts and terms

In order to understand the intricacies of the topic and understand who, how and under what circumstances can be fired if there is a reduction in staff, you should define the main concepts:

1. The number of employees is the number of all employees of the enterprise, in other words, this is the payroll. If we are talking about dismissing several representatives of the same profession performing similar functions, while maintaining the position on the staff list, then this is a reduction in the number of employees. An example would be the dismissal of three out of five architects.
2. The staff of employees is absolutely all positions represented in the company (managerial, administrative, workers and others). Their list represents the staffing table, in accordance with which the structure of the organization’s personnel is formed.
3. Reducing the number of staff may be necessary in order to exclude from the list positions that duplicate each other, or those that can be combined into one staff unit. This concept also includes measures aimed at eliminating any division.

This means that staff reduction is accompanied not just by a decrease in the number of employees with the same responsibilities, but also by the dismissal of all employees performing specific job functions. Returning to the example above, a downsizing would result in all five architects being laid off. Perhaps it is more profitable for the company not to keep these employees on staff, but to hire them from time to time to perform a separate task (outsourcing).

Legislation on dismissal due to staff reduction

The legal aspects accompanying the severance of labor relations due to changes in the structure of the staffing table are regulated by the Labor Code of the Russian Federation. A reduction in the number of employees (due to the liquidation of an organization or a change in its owner) is discussed in Article 81. Other common situations related to the termination of contracts with employees at the initiative of the employer are also listed here.

Among other cases, this article provides for the procedure for dismissing employees:

Who can be laid off?

The decision on which the reduction of the number or staff of employees depends is made by the employer, but at the same time he must take into account the rights of employees enjoying certain benefits.

When considering candidates for employees subject to dismissal, the manager is obliged to comply with the rule set out in Art. 179 TK. It states that staff reductions should occur at the expense of the least qualified personnel, which has the lowest labor productivity indicators. Practical implementation This rule is often associated with the assessment of the experience and length of service of employees. It is assumed that those who have recently worked at the enterprise represent the least value to the team.

To assess the importance of an employee great value also has the result of the qualifying exam, his education and the level of performance for the previous period. This means that when comparing two workers occupying the same position, preference will be given to the one who has higher education. His colleagues who have completed secondary education will probably be laid off.

Categories of personnel not affected by dismissal due to staff reduction

The reduction in staff does not affect the following categories:

• Parents of children with disabled status.
• Mothers and fathers raising children on their own (single).
• Parents large families until the time youngest child will not be 14 years old.
• Citizens who are the sole breadwinners of their families.
• Employees who have suffered an occupational injury or illness as a result of their work at that company.
• Disabled people who suffered as a result of wars, the Chernobyl disaster or the Semipalatinsk tests.
• Employees of the company who have awards (Hero of the USSR, Knight of the Order of Glory) or the title of inventor.
• Workers who combine the performance of their work functions with training.

Dismissal due to staff reduction does not affect those employees who are members of a trade union or act as elected representatives of the work collective and take part in negotiations with the company's management.

Also, employees of the enterprise who are on sick leave, regular leave or maternity leave. True, this can be done with their written consent or upon complete liquidation of the company.

How retirees and part-time workers are laid off

The Labor Code of the Russian Federation (Article 3) contains a ban on employer discrimination based on age. Most often this applies to workers who have reached retirement age and continue to fulfill their job responsibilities. If necessary, they will also be affected by staff reductions, but their use social status as grounds for dismissal is illegal.

Taking into account the experience and qualifications of pensioners, they, on the contrary, fall under the definition of employees with priority rights. Based on the fact that they can be one of the most useful employees of the enterprise, they are the last to be laid off.

When planning the dismissal of an employee who combines two positions, the employer performs almost all standard actions. The only difference is that the law does not establish whether it should accrue payments to such an employee.

In fact, redundancy benefits are necessary for those who lose their source of income. However, while remaining in the company, the part-time worker continues to receive wages. Here the decision on payments and their amount remains with the employer.

Why do employers resort to layoffs?

The state allows enterprise managers to independently decide on the need to reduce staff or the number of personnel. However, in the event of controversial situations, the economic feasibility of these measures can be verified by the judiciary.

This condition places the obligation on the employer to inform its subordinates about why the workforce is being reduced. This information is set out in the relevant order and may be related to the following factors:

• With a low level of profitability. The lack of profit does not allow management to pay at the proper level for the work of the previous number of employees. By reducing labor costs, an organization can save some money to pay off debts or purchase a new batch of materials.
• Ineffective staff structure. If among the organizational positions there are those that duplicate each other or are not valuable for maintaining economic activity, their elimination will be justified.
• Introduction of new technologies or equipment. When production becomes more automated and does not require the same number of employees, staff reduction can significantly reduce costs and increase profitability.

What rules must an employer follow when reducing staff?

The forced dismissal procedure can significantly affect the well-being of those employees who are subject to layoffs. They do not always have the opportunity to find a workplace with the same conditions as at this enterprise. For this reason, the state dictates certain conditions to managers, compliance with which to a certain extent protects the interests of dismissed workers:

In the event that the company’s management “forgets” to inform the employment service about their intentions, in addition to fines, the court may oblige them to pay wages employees for forced absences.

How staff reduction occurs: step-by-step instructions

Any head of a company or organization, when planning and implementing staff reduction measures, must know and comply with all legal norms and requirements. Ignoring or unintentionally violating one or more rules can lead to quite serious consequences: a fine or legal proceedings.

Based on this, the employer is interested in implementing a phased reduction of staff (the Labor Code of the Russian Federation establishes a list necessary documents and procedures):

In the event that an employee does not agree to the transfer and continuation of cooperation with the company, the last on the list of required documents is an order for his dismissal. The unified form T-8 is recognized as usual for this document.

How is dismissal due to staff reduction completed: compensation for vacation, severance pay

The dismissal of an employee who was informed on time and refused the offered vacancies takes place simultaneously with the payment of all necessary funds to him.

Along with the work book, the former employee is given:

• Wages accrued for the last period worked.
• Compensation payments for unused vacation (if any).
• Special payments in case of staff reduction (severance pay). Their amount is often equal to the average salary, but can be higher if this is specified in the collective agreement.

The company continues to pay redundancy benefits to the employee for another two months if he is listed on the labor exchange but cannot find a job. Its size is set at the average salary, but it does not take into account the amount that has already been issued.

If an employee wishes to resign earlier than the deadline set by the employer, he must be paid the money accrued for unworked time. That is, in fact, in any case, he will be paid for the two-month period between the announcement of the reduction and the date on which this procedure is planned.

Payments to certain categories of personnel

The procedure for laying off some employees is slightly different from the one outlined above. This is due to the non-standard nature of their work functions or special circumstances:

1. For those employees whose duties are considered seasonal, redundancy payments amount to an amount equal to the average salary for two weeks.
2. Employees of organizations located in the Far North are paid a one-time severance pay and an average salary for three months (if they are not hired earlier).

What will be indicated in the work book

According to Art. 81 of the Labor Code, staff reduction is indicated as a basis for termination of an employment contract in the employee’s work book. It is issued on the day of dismissal along with the accrued amount of money. Upon receipt of them, the former employee of the enterprise signs several documents (personal card, work record book, insert).

The confirmation of the record that the employment contract is terminated is the signature of the HR department employee (who maintains work books) and the employee being dismissed, as well as the seal of the manager.

What should an employee's behavior be like when being made redundant?

When a person receives notice that they are planning to be laid off, they should take the following actions:

1. Make inquiries about the list of persons who do not have the right to dismiss and find out if he is included in this category. In the event that they discover any factor that gives the right to privileges or benefits, this should be stated in a letter and submitted to the manager. The best option It is considered that the letter is drawn up in two copies. One of them is given to management with a request to put a mark of receipt on the second. This will be useful evidence in favor of the employee if the case goes to court.
2. Present demands regarding an alternative place of work at this enterprise. The employee does not have to agree to the offer, but a written refusal by the employer to provide vacancies may also become grounds for canceling the decision to lay off.
3. To receive additional payments, you must register with the employment service within a period of no more than two weeks after the staff reduction was made. The Labor Code of the Russian Federation specifies exactly this period. Then the employee becomes entitled to two months' allowance (average wage) if he fails to find a new job.

Most important aspect concludes that the employee should not write a letter of resignation himself after he becomes aware of the upcoming layoff.

Also, you should not give in to your boss’s persuasion and compromise, because dismissal by agreement of the parties does not provide for the payment of severance pay.

Professions at risk

Given the difficult economic situation, layoffs may affect a fairly wide range of companies and organizations. Doctors and teachers may not fear for their jobs, but many firms will still undergo reorganization.

Among employees of budgetary enterprises, funding for the following professions may be limited:

• Employees involved in the telecommunications sector.
• Librarians.
• Postal workers.
• Mosgotrans employees.
• Reduction of the staff of the Ministry of Internal Affairs.

In addition, some employees of state and commercial banks will have to look for new jobs.

Experts say that against the backdrop of such a disappointing situation and in the absence of wage increases, many highly qualified personnel will quit on their own initiative. Without waiting for layoffs, they will learn new relevant professions or look for applications for their talents in other countries.