Actions dismissed to reduce. Severance pay for redundancy

Practicing lawyer and economist, director of "CPC "Dialogue Consulting" LLC, member of the National Union of Personnel Officers of Russia, expert reviewer of the SPS "ConsultantPlus".

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

Education

1986-1991 — Novosibirsk Institute of Soviet Cooperative Trade; specialty: "Economics of trade";
1992-1993 — International School of Managers (Moscow); specialty: "Foreign economic activity";
1997-2002 — Law Institute of Krasnoyarsk state university(currently Yui SibFU) with honors; specialty: "Jurisprudence".

The most massive lecturer's seminar was held in Novosibirsk in April last year (298 people) on the topic: " Last changes labor law RF: review of innovations, analysis of practice".

Most Popular Workshop 2015: "Effective contract: key points transitional period" organizers: CJSC "Quadro Plus" (Kemerovo), LLC "Center for Corporate Training" (Kemerovo), UMC "Union of Industrialists" (Barnaul), ANO DPO "STsPR" (Krasnoyarsk), LLC "CPC "Dialog Consulting" (Krasnoyarsk).

For 15 years of work in the field 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. Cherenkova "Employment book: complex issues of management" (publishing house "Thought", Novosibirsk, circulation 5000 copies).

Currently, work is ongoing on the second book with the working title: " Personnel documents organizations: do it right".

The need to reduce the number of employees arises when optimizing production, falling volumes, reducing economic activity. With a reduction in the number of jobs, part of the workers are fired on the basis of paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, amendments are made to staffing.

Reduction of staff is a complex procedure both socially and psychologically for employees, therefore the legislation strictly regulated the procedure for dismissal to reduce staff or headcount. The main requirements are spelled out in Art. 82,179,180,373 of the Labor Code of the Russian Federation.

Not all employees can be fired due to staff reduction. An entire department or workshop can be cut. There are employees whose right to preferential retention at work is guaranteed by law.

Let's look at who cannot be fired for redundancy:

Employees under treatment. Temporary disability must be documented.
Employees on vacation: maternity, regular, educational, without pay.
Pregnant women.
Single parents whose children are under 14 years old and 18 years old if the child has the status of a disabled person.
Mothers raising children under 3 years of age.
Representatives of the working group.

Benefits for some workers when laid off

There are situations when reducing, when one of the identical positions is excluded. The legislation provides for rules that facilitate the choice of an employer. preferential retention at work in accordance with Art. 179 of the Labor Code of the Russian Federation have:

Employees with two or more minor children.
The only breadwinners in the family.
Employees with an occupational disease or injury received in this organization.
Employees studying under the direction of the employer.
Military invalids.
Persons affected by radiation sickness.

Stages of dismissal during job cuts

Let's consider how the layoff for staff reduction occurs. Step-by-step instructions for 2018 provide:

Downsizing cannot be done arbitrarily. An order is required to amend the staffing table indicating the positions that will be excluded.
Further, interested parties are notified: the trade union organization, if any. Notification shall be sent at least two months prior to dismissals.
Also, at least two months before the reduction, the Employment Center is notified. A list of persons is sent with indication of positions and professions. In case of mass reduction, it is necessary to notify the EPC 3 months in advance.
Employees are also notified two months in advance. The notification must be in writing, the employees get acquainted with it against signature. Dismissal before the expiration of the notice of reduction is possible upon written application of the employee. Compensation is charged for the period remaining until the expiration of the two-month period.
The presence of vacancies in the organization obliges the employer to offer these places to laid-off workers. Vacancies may appear within two months from the date of notification, these vacancies must also be offered to employees who have been made redundant. Vacancies must correspond to the qualifications and health status of employees, but the entire list is offered. The procedure is drawn up in writing, if the employee refuses the proposed vacancy, an appropriate entry is made on the proposal form and signed. If the employee agrees to the proposed vacancy, a transfer order is issued.
After the expiration of a period of two months, an order is issued to terminate the employment contract, with which it is necessary to familiarize the laid-off workers.
The last day of work is the day of dismissal, the employee receives work book, calculation and certificates of average earnings. At the request of the employee, the employer is obliged to issue other documents related to his work. The basis for dismissal in the work book is 81 articles of the Labor Code of the Russian Federation - dismissal due to staff reduction, paragraph 2, part 1.

Details about layoffs during staff reductions in this video

Downsizing payments

The reduction of an employee involves the payment of compensation in the amount of the average monthly earnings of the employee. If an employee who has registered with the employment center within two weeks after the reduction is not employed within three months, then payments are made for each month of unemployment. Compensation paid upon dismissal is considered payment for the first month. Also on the day of dismissal, wages and vacation pay for unused days of the next vacation are paid.

In case of violation of the procedure for dismissal or illegal reduction, the employee has the right to apply to State Inspectorate labor and court. The State Labor Inspectorate will check compliance with the law when laying off workers, the results of the check will be good evidence in court. The court reinstates the employee in case of illegal reduction and obliges the employer to pay compensation in the amount of the average earnings for the period when the employee was forced to not work.

In this case, the dismissal of an employee occurs at the initiative of the employer and arises as a result of a reduction in staff positions or positions in the enterprise and is regulated by Article 81 of the Labor Code. Consider step by step order actions, compensation due to the employee and some of the nuances that may arise. We will also determine which categories of citizens fall under such a wording, and which do not.

General concepts

Reduction is a fairly legal tool that an employer resorts to in order to “optimize” the staff. But in turn, this can cause a number of problems for the employer and an additional financial burden, so they often resort to a trick - “you have been laid off, write a statement on your own - this wording is better.” It all depends, among other things, on the initiator of the process.

Of course, all actions during such a dismissal must be observed in accordance with the law and deviations from it can bring problems to the organization. Therefore, it is in the interests of the employer to do everything right so that the employee does not go to court.

Preferential right of the employee not to be laid off

It is worth noting an important point that certain categories have an advantage when compiling a list of employees:

When an employee is on vacation
With temporary disability
It is forbidden to dismiss the following employees - pregnant women and women who have a young child under the age of 3 years
A single mother who is raising a child under 18 who is disabled or a minor under the age of 14
Leave an employee with higher labor and qualification indicators
If the choice fell on employees who are in equal positions, then priority is given to family employees who have 2 or more dependents; in whose family there are no other persons with independent earnings; who received an occupational disease or work injury from the employer; participants in hostilities or the Second World War; workers who improved their qualifications on the job.

Dismissal to reduce staff step by step instructions

Step 1. Issuing an order to carry out the reduction

For the legality of actions, it is necessary to issue an order. For understanding, we note that the order to dismiss and the order to reduce staff are different documents. The very form of the order to carry out measures to reduce the staff does not have an approved form, however, its preparation requires a responsible approach. It must reflect the date of reduction and reflect the changes made to the staffing table. A new approved staffing table will also be required.

Step 2. Notifying employees, offering other vacancies

According to the rules of the Labor Code, the employer is obliged to notify the employee 2 months before the onset of a reduction in staff, headcount, or in the event of liquidation (bankruptcy) of the company. Based decision a new staffing table and an order are issued, which are brought against signature to each employee who has been made redundant.

In the event of a reorganization or downsizing, but not liquidation, it is the employer's responsibility to offer employees who have been made redundant all vacant positions corresponding to their experience and qualifications (clause 3, article 81 of the Labor Code). But in practice, the organization simply “forgets” about it, and employees simply do not know about it.

Upon receipt of a notification with the proposed vacancies, the employee has the right to agree to such a place or not. In the first case, the employee is transferred, and in the second, the employee is dismissed.

Step 3. Notification of the trade union organization and the employment service authorities

In the presence of trade union organization it also needs to be notified of the reduction taking place. The issue of timing was controversial for some time, but by definition No. 201-O-P, which was issued on January 15, 2008, the deadlines were set - to notify 2 months before the date of dismissals, in case of mass actions - 3 months.

The opinion of the trade union organization must be sent to the employer within 7 days, otherwise it will not be taken into account. If the trade union does not agree on the fact of dismissal, consultations must be held within 3 days, and they should be recorded. If consent to these actions and agreements were not reached within 10 working days, the employer has the right to make a final decision on the reduction.

By the same principle, it is necessary to notify the employment service. Notifications approved by government decree No. 1469 dated 12/24/2014 - with a reduction in the enterprise for 2 months (download the notification form, according to Appendix No. 1) or for mass layoffs, then 3 months (download the form, according to Appendix No. 2).

Step 4. Dismissal order

For the final initiation of dismissal, it is necessary to issue an order in the form T-8. At the same time, in the column "reason" it is necessary to indicate the reason for dismissal - to reduce staff. After that, the order must be signed by the director and also, after familiarization, signed by the employee.

Step 5. Entry in the work book

Next, you should make the appropriate wording in the work book, in which the reason is displayed - reduction, referring to the article of the Labor Code. For example, “The employment contract was terminated due to the reduction in the staff of the organization’s employees, clause 2, part 1, art. 81 of the Labor Code of the Russian Federation.

Step 6. Entry in the work book registration book and employee card

Simultaneously with the issuance of a work book to an employee, you should receive a signature from him in the journal for issuing work books. And then you need to enter the data in the employee's personal card - the date of dismissal and the reason.

Step 7. Layoff for redundancy payment of benefits

Let's look at what benefits and payments are due to the employee. It is the fulfillment of obligations under this paragraph that pushes the employer to negotiate with the employee, and sometimes intimidate him, in order to write him a statement on own will. Payments are regulated by Art. 178 TK.

Upon dismissal due to redundancy, the employee is entitled to a severance pay, which is the amount of one average monthly salary, and also the average monthly salary is retained for the period of his employment, not exceeding 2 months. Upon dismissal, the employee is issued a certificate of his average monthly earnings (including the amount of severance pay). If within 2 months the employee did not find a job, then the organization is obliged to pay the employee for another 2 months.

To receive these compensations, the employee must register with the employment service. In exceptional cases, by decision of the service, the employee may be paid for the third month. For payment, the employee must provide the employer with his work book, in which there are no employment records, including an application. Payments are made after 2 months from the date of dismissal.

In addition, the employee is entitled to standard payments - compensation for unused vacation (if any) and with it the calculation for the days worked.

After signing the documents, it is necessary to pay the employee on the last day of his work.

Appealing actions by an employee in court

In case of misconduct, the employee has the right to sue and appeal the decision. To do this, within a month from the date of receipt of a copy of the dismissal order (or receipt of labor, or from the date of refusal to receive an order or labor under Article 392, part 1 of the Labor Code), it is necessary to file an application with the district court for recognition of such dismissal as unlawful, as well as recovery from the employer during his absence the amount of average earnings.

By decision of the court, the employee may be reinstated at his previous place of work and may also recover in his favor the amount of compensation for the time of absenteeism. In particular, they can change the wording according to which the employee was dismissed to dismissal of his own free will (parts 3, 4 of article 394 of the Labor Code), as well as award moral compensation.

Step-by-step instructions for the layoff process for downsizing

IN Lately there has been a significant increase in the use of redundancy by employers as a reason for dismissal. Despite the complexity of such a process, often for management this option is the only correct and possible one.

Therefore, it is worth understanding the legal intricacies of the procedure, the rights of employees to compensation of a different nature.

In what case is

The dismissal of employees to reduce the staff should be carried out in cases where there is an economic need for this. Moreover, the law requires the employer to indicate the specific reason for the forced reduction in the number of employees in the text of the dismissal order.

Among the cases due to which the management may decide to reduce the state, we can note:

reorganization of the enterprise;
availability of prerequisites for liquidation;
change in technological working conditions, which will make some positions unnecessary;
low profitability, which requires management to optimize costs, primarily for labor costs;
the presence of positions that are not needed, or such work functions can be enlarged and reallocated.

Who can't be fired

Downsizing is always the initiative of the employer. But, labor legislation defines a number of categories of employees who cannot be dismissed under this article.

When reducing the number of positions in the staffing table, management does not have the right to dismiss:

Pregnant employees.
Women in maternity leave(leave to care for a child up to 3 years of age).
Single mothers whose child is not yet 14 years old (18 years for children with disabilities). It is important here that the mother has the official status of a loner, or the second parent does not have a permanent source of income. This point also applies to single fathers, since the Labor Code does not separate the concept of single parents by gender.
The only breadwinner in a family with a disabled child under the age of 18, or a large family with children under 3 years old.

The employer does not have the right to dismiss under Art. 81 employees with the highest qualifications in the field professional activity enterprises. Restrictions also apply to employees with high labor productivity.

But, in this case, you will have to document the fact of good work with various documents, for example, diplomas, certificates of passing specialized courses for advanced training, certification documents.

If all employees have approximately the same skill level, the employer must keep the job in the first place:

persons who are married and have dependents;
the sole breadwinner in the family;
employees who were injured or ill while performing their professional duties;
invalids of the Second World War, other military operations;
employees who are taking refresher courses.

It is also important for the employer to take into account the collective agreement, since other protected categories of employees may be registered there, for example, those related to length of service. Often the immunity extends to certain union members.

Video: The essence of the procedure

Step-by-step instructions for dismissing an employee to reduce staff in 2018

The full procedure for reducing the staffing table is located in the articles of the Labor Code, and each employer must clearly follow the procedure provided there.

Conventionally, this procedure can be divided into 4 stages:

Order preparation.
Familiarization of each employee with the text of such a document against signature.
Notification of government agencies.
Direct dismissal.

Each stage has many bureaucratic features, both for its implementation and for preparation. Let's consider each step in more detail.

Notification

It is impossible to legally carry out staff reductions in just a few days. Article 180 of the Labor Code of the Russian Federation requires the employer to issue an appropriate order at least 2 months before the reduction.

The date of counting of these two months is the day of delivery of the relevant notice to the employees.

In which court is an application for divorce filed? The answer is here.

Also, the management of the enterprise must notify the Employment Service of the upcoming dismissal. The notice lists the names of all employees subject to redundancy, their experience, qualifications and level wages.

However, if planned mass layoff, the notice must be sent no later than 3 months before the start of the dismissal. For individual entrepreneurs the notice period for the CSC is two weeks.

If there is a created trade union in the company, in parallel with the notification of the Employment Service, this body is also notified. If there are trade union members on the dismissal list, the company management must justify its choice.

Objections of the trade union can be expressed within 1 week from the date of receipt of the notice.

The form of notification is not fixed by law, and is determined by the enterprise independently. In addition, the document should also contain a list of vacant positions where employees will be asked to move.

Order

2 months before the reduction of staff, the management of the enterprise must issue an appropriate order. Before that, a new staffing table is being developed and approved.

The dismissal order due to staff reduction must contain the following information:

reasons for the reduction;
persons responsible for the event (employees of the personnel department and accounting department);
clear deadlines for the procedure.

In the order, it is important to indicate all the nuances of payment and settlement. The document is certified by both parties.

Possibility of translation

In order to carry out the redundancy procedure legally, the employer must go through the new job creation procedure and offer redundant workers the opportunity to transfer.

New vacancies may be low-paid, require less qualifications, or even be located in another region. The refusal of the employee from the proposed alternative must be recorded in writing under the signature.

So that employees do not delay the process, it is worth specifying in the notice a clear time frame for making a decision on the transfer.

In case of refusal, the employer begins the termination procedure labor relations.

Entry in the work book

When employees are dismissed due to staff reduction, a corresponding entry is made in the work book with reference to 2 hours 1 of Art. 82 of the Labor Code of the Russian Federation.

Payment of salaries and compensation

All employees who have fallen under the reduction of staff must be correctly calculated.

According to the norms of the Labor Code, such employees are entitled to expect payment of wages and severance pay, including:

wages for all actually worked days of the current month;
compensation for unused vacation;
compensation in the form of average earnings per month;
average monthly salary.

To receive payments to reduced pensioners, a slightly different scheme is provided.

Calculation

The employer is obliged to pay all payments and compensations provided for by law to the employee on the day of dismissal. However, this only applies to the first three payments.

He has the right to apply for the average monthly salary only 2 months after the reduction. To receive a payment, you need to write a corresponding application and present a work book.

A month later, you can again apply for such a payment, but you will already need a certificate from the CSC stating that the person is not registered with them.

It is important to comply with the deadlines, and also not to try to receive compensation for employment during this period, since such actions threaten litigation and fines.

Delivery of documents

The procedure for terminating an employment relationship is formalized in the personnel department. Employees of the department make an appropriate entry in the work book of the dismissed employee, a copy of which is placed in his personal file.

For subsequent employment, it is very important to comply with all requirements for making such records.

On the day the documents are issued, the employee must sign in the accounting book on receipt of the work book. In addition, he is issued with a dismissal order.

Delay in payments and issuance of a work book in accordance with current legislation provides for financial liability on the part of the employer.

If payments are delayed, interest is charged in the amount of 1/300 of the Central Bank refinancing rate for each overdue day.

What is the minimum amount of child support in 2017 for an individual entrepreneur? Look here.

Reduction of staff according to the Labor Code of the Russian Federation in 2018: instructions and registration

The reduction in the staff of employees under the Labor Code of the Russian Federation in 2018 is associated with the need to strictly comply with the requirements for the preparation of documents and the timing of their submission to employees and trade union organizations. The abolition of a position may result in the transfer of an employee to another labor function if there is mutual agreement.

When an employer has to resort to a staff reduction procedure

The reduction of staff according to the Labor Code of the Russian Federation in 2018 regulates the presence of significant circumstances, among which should be highlighted:

The enterprise will be reorganized;
There are prerequisites for liquidation;
It is planned to change the technological working conditions.

In fact, the reduction is due to the need to optimize costs through structural changes and reduce the bloat of the staff, the consolidation of the work function for each employee and the redistribution of responsibilities.

When dismissing due to staff reduction, the following procedure must be observed:

Reductions are only allowed if there is a good reason;
The procedure must be agreed with the trade union organization;
The employer, if possible, is obliged to offer an alternative position or job function within the qualifications of the employee;
Exclude from the number of employees, persons who have the prerogative to remain in the state in accordance with the law;
Deadlines for notification should be clearly provided;
All orders issued as part of the procedure for the abolition of the staffing and termination of employment relations must be registered in the register of orders (orders).

Step by step guide to downsizing

In order for the employer to avoid legal liability, it is necessary to correctly draw up the entire procedure for reducing the staff, based on the provisions of the Labor Code of the Russian Federation.

The layoff for staff reduction has the following form of step-by-step instructions:

Preparation and adoption of a document on staff reduction due to the relevant decision of the founders, owners of the organization;
Identify personnel who cannot be dismissed by law and those who are given priority by the employer because of their labor characteristics(the specified event must be drawn up in writing in the form of a summary comparison table, which indicates the analyzed data for each employee);
Approval of the new number of employees remaining in the state;
Initiation of an order to reduce the number of company personnel.

Exhaustive reasons for downsizing;
Positions to be abolished;
The timing of the procedure and the timing of the termination of the employee's labor function;

Familiarization with the order of employees:

Not later than 2 months before the date of the proposed dismissal;
The document is drawn up in writing, in two copies, one of them remains with the employee, and the second is returned to the employer;
Personally for each employee;
Under painting;
The order first provides for the abolition of the position and further reduction of the employee.

Notification of the trade union organization of workers, employment service:

with a slight reduction. approval is carried out within 2 months;
if a mass dismissal is planned, then a 3-month period is allotted for approval;
the message contains information about the abolished positions, professions, specialties presented to them qualification requirements and wages personally for each of the dismissed employees;
the message, without fail, is registered in the journal of outgoing documents;

Termination of the contract with each of the reduced employees:

implies the issuance of dismissal orders for each employee in the abolished position;
the employer cannot reduce employees who are on official leave or temporarily disabled at the time of issuing the order.

Entering relevant data into the employee's work book;

Making a note-calculation on the basis of termination of labor relations;

Making settlement payments, issuing work books.

Since the creation of the order to reduce the number of employees, the employer assumes the obligation to notify such employees in relation to newly opened vacancies that are not subject to abolition. The employee retains the right to choose: agree with new position or refuse.

The Labor Code of the Russian Federation indicates other terms for notifying employees about staff reductions, due to some peculiarity of the labor function or organizational and legal form.

These include the following dates:

7 calendar days - the period for notifying employees engaged in seasonal work;
3 calendar days - the notice period for employees who have concluded a fixed-term employment contract with the employer for a period of up to two months;
14 calendar days is the period for notifying employees who fulfill labor obligations with an employer - an individual entrepreneur.

Which workers can be laid off

The law introduces restrictions on the circle of persons who are prohibited from being fired due to a reduction in the number of staff. Among them:

Pregnant women or women on maternity leave (until the child reaches 3 years of age);
Single mothers or any other parent, guardian, raising a child by single efforts;
Mothers raising a child with a disability;
Persons who are the sole breadwinners of the family;
Persons who work off an earlier stipulated period (for example, in the case of distribution upon completion of training on the basis of a contract to subsidize the cost educational process by the organization).

In view of the liquidation of the organization;
By agreement of the parties (coincidence of the intentions of the employer and employee).

There is another classification of employees, which is endowed with low risks (preferential right to retain the labor function) of dismissal in case of staff reduction. These include workers:

with high labor productivity;
having at least two dependents;
invalids of fighting and labor;
who have received an industrial injury, mutilation or occupational disease while working for this employer;
invalids of the Great Patriotic War;
improving their qualification skills on the job in accordance with the direction of the employer.

Additional grounds for the preference of persons from dismissal may be contained in an employment or collective agreement, among which the employer may give preference to those entities who have worked in his team for more than 20 years or those who have the last year left to work before retirement.

Employees who are not included in a special category may be dismissed in accordance with the rules of Art. 81 of the Labor Code of the Russian Federation.

There is a certain order, according to which, the first to be fired are:

workers with lower qualifications (the decision is made by a specially created qualification commission);
have worked less time.

The decision of the commission should be made on the basis of objective data, which are formed on the basis of the level of fulfillment of the production standards of specific employees, the quality of the work they perform, education documents, attestation results, certificates of advanced training.

In the event that each of the employees whose position is subject to abolition is in equal production capabilities, then the manager makes a decision on the reduction in favor of those who:

a greater number of days spent on sick leave can be traced;
there are more delays, reprimands, mistakes made or manufacturing defects.

Payments and compensations to employees dismissed due to staff reduction

All redundancy payments are made on the day the employment relationship with the employee ends.

The reduction of staff according to the Labor Code of the Russian Federation in 2018 implies the following compensations:

earnings for the current month;
payment of severance pay in accordance with the size of the average monthly earnings (paid as a lump sum);
compensation for unused vacation days;
sick leave payment;
maintaining the average monthly earnings for the period of looking for another job (no more than 2 months and including severance pay).

A separate type of compensation is payments due to an employee who, by mutual agreement with the employer, stopped labor obligations before the end of the 2 month term of dismissal. Such payments are calculated based on the proportion of average earnings and the time remaining before the expiration of the notice period.

persons engaged in seasonal work are awarded a severance pay in the amount of 2 weeks of earnings;
employees of the Far North and areas equivalent to them are entitled to claim severance pay and the preservation of the average monthly earnings for a period of 2 to 6 months (subject to contacting the employment service in the first month from the date of dismissal, through whose efforts they were never employed).

To fully understand what the compensation payments of an employee who has been made redundant can be, consider a detailed example:

severance pay\u003d number of working days in the first month after dismissal * average daily earnings;
Average daily earnings \u003d total annual income: the number of working days in a year;
According to the conditions, the total annual income of Ivanov A.A. will be 180,000, the number of working days in a year is about 247. Based on this, the average daily earnings will be 728.7 rubles.
The number of working days in the month following the day of dismissal is 23.
Ivanov A.A. will receive a severance pay in the amount of 16,761.1 rubles.

When calculating severance pay, the following nuances should be taken into account:

from the total annual amount of earnings, payments attributable to periods of temporary disability and vacation pay are excluded;
when calculating financial assistance, the countdown is carried out starting from the next day after the dismissal;
the amount of income may be affected by other one-time bonuses and personal cash incentives for the employee;
days of vacation and temporary disability are deducted from the volume of actually worked days per year.

Conclusion

Dismissal, due to a reduction in the number of employees, can occur only on the basis of the decision of the founders of the company and if there is a weighty argument. The law identifies categories of citizens who cannot be reduced a priori, except in cases related to liquidation measures. In the process of implementing the procedure for reducing the number of staff, the employer is obliged to correctly draw up all related documents, offer the dismissed employees other available vacancies, ensure compliance with deadlines and provide former employees with mandatory and compensation payments.

Downsizing procedure: step by step instructions

Reducing employees, we adhere to the established procedure

When laying off employees, it is extremely important to comply with the procedure established by the Labor Code (Articles 179, 180 of the Labor Code of the Russian Federation). If you break something and do it your way, it can turn into additional troubles and expenses for the organization. After all, the court can reinstate a dismissed employee at work and force the organization to pay for his forced absenteeism (Article 394 of the Labor Code of the Russian Federation). Therefore, it is better not to violate the established algorithm for reducing an employee.

The reduction algorithm is established by the Labor Code of the Russian Federation

For the convenience of readers, our specialists have prepared step by step instructions on the reduction of staff 2018, which should be followed when reducing staff:

Step 1. Issuing an order

The first step is to issue an order to reduce the number (staff), as well as prepare a new staffing table for the organization. It is clear that in practice there may be several editions of the new staffing table.

Step 2. Determining whether employees have preemptive rights

Further, it is necessary to establish whether any of the employees has a preferential right to remain at work. This procedure must be done before compiling a list of laid-off workers (Article 179 of the Labor Code of the Russian Federation).

Step 3. Preparation of a list of dismissed employees (reduced positions)

The next step is to prepare a list of reduced employees (positions). And this is not a formal document. Without such a list, the court may invalidate the dismissal of the employee and reinstate him in his position.

Step 4. Notify workers

After the list of those laid off has been drawn up, it is necessary to warn employees about the upcoming reduction (part 2 of article 180, part 2 of article 292, part 2 of article 296 of the Labor Code of the Russian Federation). To do this, all employees affected by the reduction must be sent a notice of reduction. This must be done in advance: at least two months before the date of dismissal.

Step 5. Job offer

The next mandatory step in the reduction is the offer of vacant positions in the company to dismissed employees (part 3 of article 81, part 1 of article 180 of the Labor Code of the Russian Federation). Moreover, it is not at all necessary to offer positions of equal status, the main thing is that the employee does not have medical contraindications for the proposed work.

Step 6. Registration of the transfer of employees who wish to remain in the company

If one of the employees agrees to the position offered to him, then you need to issue a transfer by signing additional agreement and issuing an order (Article 72.1 of the Labor Code of the Russian Federation).

Step 7. Notice to the employment service

Further, it is necessary to notify the employment service and the trade union, if, of course, it is created in the organization. This must be done in writing (part 1 of article 82 of the Labor Code of the Russian Federation, clause 2 of article 25 of the Federal Law of 19.04.1991 No. 1032-1). After notifying the trade union of the upcoming reduction, it is necessary to coordinate with it the dismissal of workers - members of the trade union (part 2 of article 82 of the Labor Code of the Russian Federation).

Step 8. Dismissal and payment of severance pay and compensation

Finally, after following all the established procedures, employees can be fired by paying them a severance pay. Employees dismissed early (with their consent) need to additionally pay compensation in the amount of average earnings for the time remaining until the expiration of the term of dismissal specified in the notice of reduction (clause 2, part 1, article 81, 178, part 3, article 180 of the Labor Code of the Russian Federation).

These are the step-by-step actions of the personnel officer when reducing staff in 2018.

The article was written based on materials from sites: otdelkadrov.online, infportal.ru, 101zakon.ru, mbfinance.ru, blogkadrovika.ru.

When reducing the staff of a company, it is important not only to comply with the dismissal procedure provided for by labor legislation, but also to correctly calculate payments guaranteed in general case. These are the following payments:

- wages for the actual hours worked in the month of dismissal;
- compensation for unused vacation;
- severance pay in the amount of average earnings;
— average earnings for the period of employment.

Payment terms for downsizing

Not all mandatory payments are made on the same day.

On the day of dismissal, the employee receives:

-wages;
- compensation for unused vacation;
- severance pay for the first month, its payment does not depend on the further employment of the employee.

After the first month from the date of dismissal, the employer does not make any payments to the laid-off employee.

At the end of the second month, if the employee presents the employer with a work book without a record of employment and writes an application, he needs to pay the average earnings for the period of employment, offsetting the severance pay paid on the day of dismissal.

If the former employee is employed in the middle of the second month, the benefit is calculated in proportion to the time during which the employee was not employed.

At the end of the third month, the average earnings for the period of employment are paid, but only if (:

- within two weeks from the date of termination of the employment contract, he applied to the employment service at the place of his registration and was registered;
- within three months after the dismissal was not employed by the employment service.

If these conditions are met, after the end of the third month, the employment service will issue an appropriate document to the employee, upon presentation of which the employer will have to pay him the average earnings for the period of employment (for the third month after dismissal).

The payment of average earnings for the period of employment is not salary, so it is not necessary to pay it within the time limits set by the local normative act companies to pay salaries. Payment of amounts can be made after 2 and 3 months on the days agreed with the former employee.

The procedure for calculating payments for downsizing.

The salary for the month of dismissal is calculated in the usual manner without any restrictions. If an employee is entitled to additional payments and allowances, they cannot be arbitrarily canceled, since "he still quits."

Compensation for unused vacation is calculated as the average earnings for vacation pay in accordance with the norms of part 4 of article / 139 of the Labor Code of the Russian Federation, as well as paragraphs. 10-12 of the Regulations on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

Compensation is calculated for calendar days of unused vacation at the time of dismissal. When determining the number of days for which compensation is paid, the following must be borne in mind. An employee who has worked for an employer for more than a year and is dismissed in accordance with paragraph 2 of part 1 of art. 81 of the Labor Code of the Russian Federation, compensation for the last working year is paid in full if for the specified period the length of service giving the right to the annual basic paid leave amounted to more than 5.5 months.

Severance pay is calculated in the amount of average monthly earnings, the amount of which is determined in accordance with Part 3 of Art. 139 of the Labor Code and clause 9 of the Regulation on average earnings.

In this case, the calculation is made based on the number of working days according to the work schedule of the dismissed employee in the month following the day of his dismissal.

If the employee has been given a summary accounting of working hours, severance pay is paid for the number of working hours that the employee does not work due to dismissal. The number of hours is calculated based on the weekly working hours established for this category of workers (in the general case - 40 hours).

For the first month of maintaining average earnings for the period of employment, the employee receives severance pay on the day of dismissal. Therefore, the payment for the second month of the employment period is calculated by offsetting the severance pay.

The calculation of the severance pay involves not only cost indicators, but also units of time: days, hours, months... An error in their determination can lead to overpayment or underpayment of the severance pay.

To determine the boundaries of the period for which severance pay is paid, it does not matter what day it ends - a working day, a weekend or a holiday.

In this case, you need to set a period to determine the amount of severance pay, and not to perform any actions that cannot be performed on a non-working day.

We will consider the procedure for settlements with employees using the example of one of them.

So, on the day of dismissal due to staff reduction, the employee was paid a severance pay in the amount of 127,565.02 rubles, calculated on the basis of an average daily earnings of 5,798.41 rubles. Recall that the severance pay and the average monthly salary retained for the period of employment, which are paid in accordance with the Labor Code, are recognized as compensation payments. Therefore, personal income tax is not calculated and not withheld from their amount.

On January 20, 2010, the employee was paid the amount of average earnings for the second month after dismissal in the amount of 86,976.15 rubles, on February 25, 2010 - for the third month in the amount of 133,363.43 rubles.

Five more laid-off employees of this organization faced a similar situation regarding the size of payments. At the same time, the calculation of the average earnings of some of them did not include a bonus in the amount of 72,000 rubles, paid in December 2008 on the basis of an order for bonuses for the New Year.

The employees did not agree with the size of the severance pay and payments for the second month after the dismissal and decided to recover the underpaid amounts through the courts.

In support of the claims, the following arguments were given.

The Labor Code of the Russian Federation provides that in case of reduction, the employee is paid a severance pay in the amount of SMZ. In this case, this indicator is calculated incorrectly. In accordance with Decree of the Government of the Russian Federation of December 24, 2007 No. 922 of the Regulations on the peculiarities of the procedure for calculating the average wage, all types of payments provided for by the employer's remuneration system, regardless of their sources, are included in the calculation. These include bonuses and awards. According to Order No. 6-k dated December 20, 2008, the employees were paid a bonus in the amount of 72,000 rubles. However, the employer did not take this amount into account when calculating the SMZ.

As for the payment for the second month after dismissal (Labor Code of the Russian Federation), here the employer made a mistake. Availability of non-working people in a calendar month public holidays is not a basis for reducing wages (Article 112). Severance pay and subsequent payments are designed to maintain official salary dismissed employee for the period of employment. Therefore, the number of holidays should not affect the amount of these payments.

If from the work book presented by the employee it follows that he was not employed during the entire second month, then the former employer is obliged to pay him the SMZ in full. But payments to employees for the second month were 1/3 less than the severance pay and payments for the first month.

The employer, referring to Decree of the Government of the Russian Federation of December 24, 2007 No. 922, indicated that the calculation should be based on the working days of the payable period. But this interpretation contradicts the principles laid down in the Labor Code of the Russian Federation, and violates the guarantees of equality of rights and freedoms of citizens established by the Constitution of the Russian Federation. One of the basic principles in accordance with comp. 2 of the Labor Code of the Russian Federation is the equality of rights and opportunities for employees. According to Art. 3 of the Labor Code of the Russian Federation, no one can be limited in labor rights or receive any benefits based on circumstances not related to his business qualities.

The specific procedure for calculating payments in case of reduction is not determined by the Decree of the Government of the Russian Federation of December 24, 2007 No. 922. The employer took into account the phrase “by the number of days actually worked during this period” and calculated each payment based on the working days in the month. But at the same time, he did not take into account that the Decree of the Government of the Russian Federation of December 24, 2007 No. 922 refers not to workers, but to actually worked days. And since the workers were dismissed in November, neither in December, nor in January, nor in February could they have “actually worked days”.

After analyzing the above situation, we can conclude that the employee took the wrong path in solving this problem.

Firstly, in accordance with the Decree of the Government of the Russian Federation of December 24, 2007 No. 922 of the Regulations when determining the LMS for compensation payments use the average daily earnings, calculated by dividing the salary accrued for the days worked in the billing period, including bonuses and remuneration, by the number of days worked in this period. The exception is cases when average earnings are determined for the purpose of paying holidays and paying compensation for unused vacations, as well as the average earnings of employees who have a summarized record of working time.

In other words, when determining average earnings, in our case, to calculate compensation payments associated with a reduction, only working days, and not calendar days, are taken into account (as for the purpose of paying for vacations and unused vacations). This division of the system for determining average earnings is due to the fact that vacations in accordance with Art. 115 of the Labor Code of the Russian Federation is provided in calendar days, and the salary is calculated based on the number of working days worked in a month. At the same time, according to Art. 112 of the Labor Code of the Russian Federation, the presence of non-working holidays in a calendar month is not a basis for reducing wages, i.e. the fewer working days in a month, the more expensive they are.

So, if an employee went on vacation in January for several days, then the difference between the salary paid if he had not gone on vacation, and the amount of compensation for vacation and part of the salary for the days worked in January may not be in his favor.

Thus, the employer correctly calculated the average earnings of employees based on the working days in the month.

Now regarding the bonus for the New Year. According to Decree of the Government of the Russian Federation of December 24, 2007 No. 922 of the Regulations for remuneration based on the results of work for the year, accrued for the calendar year preceding the event, are taken into account to determine the amount of average earnings, regardless of the time of their accrual. This is confirmed by judicial practice.

Considering the foregoing, it can be argued that when calculating the average earnings to determine the amount of both compensation for unused vacations and payments related to the reduction, the employer was obliged to take into account the bonus for the New Year.

The procedure for calculating average earnings for all cases provided for by the Labor Code of the Russian Federation is determined by Decree of the Government of the Russian Federation of December 24, 2007 No. 922. According to Decree of the Government of the Russian Federation of December 24, 2007 No. 922 of the Regulations, this indicator is calculated by multiplying the average daily earnings by the number of days (calendar, working) in the period . At the same time, the indication of both calendar and working days is dictated by the fact that Decree of the Government of the Russian Federation of December 24, 2007 No. 922 provides for two methods for calculating the average daily earnings.

So, for vacation pay, the average daily earnings are determined by dividing the salary accrued for the billing period by 12 and by the average monthly number of calendar days (29.4). For all other cases, the average daily earnings are calculated by dividing the salary accrued for the days worked in the billing period by the number of days worked (i.e. working).

Based on the systematic interpretation of these norms, the average earnings should be calculated by multiplying the average daily earnings by the number of days (calendar or working) on the basis of which the average daily earnings were calculated.

Whereas the average daily earnings for determining the average monthly earnings for the period of employment paid in connection with the reduction are calculated on the basis of working days, the average monthly earnings should also be calculated by multiplying the average daily earnings by working days. Calculation on the basis of calendar days is used only for payments related to holidays. The following facts also support this position.

First, status former employee, receiving the average monthly earnings in connection with the reduction, and the working person are different. In this regard, the approach of the legislator, applying a different procedure to them legal regulation, is justified. Secondly, it would be wrong to ignore the rights of the employer when considering this issue. The calculation of average earnings based on the number of calendar days would place additional burdens on him in the form of expenses not provided for by labor legislation. Payments calculated using this method would exceed the salary of the employee during his employment with the employer.

Thus, in this situation, the employer acted lawfully.

Unfortunately, the current legislation does not establish a clear procedure for calculating average earnings, which leads to uncertainty in the interpretation of the norms by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 and the Labor Code of the Russian Federation and the emergence of similar issues in practice. An analysis of judicial practice also did not bring clarity, since it has not yet become the subject of consideration by the Supreme Court of the Russian Federation. In connection with the foregoing, it would be wrong to call the position of the author of the problem erroneous, although we adhere to a different approach.

Job loss is almost always an 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 modern organizations sin precisely 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 this case, we will consider what should be the procedure for dismissal to reduce staff.

Dismissal by reduction - memo to employees

The layoff procedure for downsizing is a headache for many companies. Loopholes that can facilitate this process, reduce costs and bypass labor Code searched 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 should provide its employees with redundancy notice not later than two months before the actual reduction in the number of personnel occurs. Apart from general meeting and information on the stand, the leaders of the organization must convey the information to each employee personally and receive confirmation by his signature.

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

3. Another important nuance that you need to pay attention to is early dismissal due to redundancy. This situation occurs when an employee who has been made redundant has expressed a desire to quit early due to employment at new job. In this case, the organization has no right to interfere with the employee. With regard to compensation, the employee is entitled to rely on additional payment in the amount of average earnings calculated in proportion to the time left before the expiration of the notice period for the reduction.

4. Reduction payouts. If a corresponding entry is made in the work book, the employee is entitled to the following compensation upon dismissal by reduction:

Not later than last day of work, the employee must receive a calculation in the amount of the salary for the last month of work + compensation for all unused vacations
Together with the calculation, the employer is also obliged to pay in advance the severance pay for the first month of the employee's unemployment. If the employee has not found a job within two months, the employer must pay another allowance in the amount of the average monthly earnings. Provided that 14 days after the dismissal, the employee registered with the Employment Service, but 3 months after the reduction he still found a job, he is entitled to another severance pay upon dismissal due to reduction and temporary unemployment.
Reduction benefits. In the event that 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 the dismissal for reduction and the next 3 months: 75% of the average monthly salary;
the next 4 months - 60% of the average monthly salary;
from the 8th to the 12th month - 45%.

Also, an employee who has fallen under the dismissal for reduction has the right to:

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

If the conditions for dismissal by 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 worker, in whatever country he may be. Each person is obliged to know their rights, and for this, at least sometimes it is worth looking into the labor code.

The reduction can be carried out by reducing the number of employees, or reducing staff units. This procedure is carried out to optimize the work of the enterprise. The leader has two options:

Remove unnecessary positions from the staff list.
Reduce the number of employees in positions.

The general principle looks like this:

the leader makes the decision;
the order must be issued two months before layoffs, if they are massive, then the period is increased to three months;
a new staffing table is being prepared and approved. Important. It is impossible to dismiss for reduction without exclusion of posts from the staff and approval of its amended version;
the employment service is notified about the upcoming event (part 2 of article 25 of Law No. 1032-1 of 04/19/91);
priorities are set in the selection of employees who will remain working.

The Labor Code of the Russian Federation establishes a list of persons who cannot be dismissed by reduction, and persons who fall under the procedure in the first place (Article 279, Article 161).

Labor Code of the Russian Federation, Article 279. Guarantees to the head of the organization in the event of termination of the employment contract

In case of termination of the employment contract with the head of the organization in accordance with paragraph 2 of Article 278 of this Code, in the absence of guilty actions (inaction) of the head, he is paid compensation in the amount determined by employment contract, but not less than three times the "average monthly earnings", except for the cases provided for by this Code.

Labor Code of the Russian Federation, Article 161. Development and approval of standard labor standards

For homogeneous work, standard (intersectoral, sectoral, professional and other) labor standards can be developed and established. model norms labor are developed and approved in the manner prescribed by the authorized Government Russian Federation federal agency executive power.

The following categories are fired first:

employees are pensioners;
employees who do not have much experience and work experience;
workers who have poor performance, frequent comments.

minors;
pregnant women;
women on maternity leave;
women with children under three years of age;
single parents with a dependent child under the age of 14;
people with a disabled child.

Important. It is possible to reduce a maternity position only after the main employee starts working (the exception is the complete liquidation of the enterprise) (Article 256 of the Labor Code of the Russian Federation).

After the selection of persons who will fall under the reduction, they must be notified of this in writing against signature.

the possibility of replacing alternative posts. When there are vacant positions in the company, the boss must offer them to the dismissed persons;
order to terminate the employment contract, its registration. Important. The employer cannot dismiss an employee during vacation or sick leave (Article 81 of the Labor Code of the Russian Federation);
final payment of employees.

On the day of dismissal, employees are paid settlement, all compensations stipulated by law.

A work book with a corresponding entry and other certificates are issued at the request of the dismissed person.

Reference. When people are threatened with layoffs, you should not immediately quit and rush in search of a new job. When dismissed in this way, the employee is entitled to fairly solid payments.

Therefore, it is worth waiting for this moment, and only then look for a new place.

Responsibilities of the employer in case of layoffs

The manager has no right to fire employees just like that. All norms and requirements of the Labor Code of the Russian Federation must be observed. So, what is the employer obliged to provide when reducing?

Employment

If the company does not completely cease to exist, then the employee must be offered any other vacant position.

Upon dismissal due to redundancy, the employer must within two months, in case of a vacant vacancy, notify about this reduced employee.

final settlement

In case of reduction, the employer is obliged on the day of dismissal pay all outstanding payments(Article 140 of the Labor Code of the Russian Federation):

full payment upon dismissal (including compensation for unused vacation);
severance pay (the amount is the average monthly salary);
a person receives an average salary within two months after dismissal, and when applying to the employment service - three months (an exception is employment during this period);
issuance of required documents.

Labor Code of the Russian Federation, Article 140. Terms of calculation upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed.

If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

On the day of dismissal, when an employee is made redundant, the employer must Submit completed workbook.

Other references for labor activity the organization is obliged to issue on the basis of a written application.

Liability for non-compliance

If the manager violated the rights of employees when reducing the number or staff, he will be brought to administrative, disciplinary, and in some cases criminal liability (Article 419 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation, Article 419. Types of liability for violation of labor legislation and other acts containing labor law norms

Persons guilty of violating labor legislation and other acts containing labor law norms are subject to disciplinary and “financial” liability in the manner prescribed by this Code and other federal laws, and are also brought to "civil law", "administrative" and "criminal" liability in the manner prescribed by federal laws.

All actions of the manager must be reflected in the documentation in accordance with the law, and employees are notified against signature of the upcoming reduction.

In case this did not happen, a person can demand that their rights be respected in court. The law is always on the side of employees in these cases. The employer will be obliged to reinstate the citizen in his position, as well as pay him lost profits and moral damage. (Articles 234, 237 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation, Article 234. The obligation of the employer to compensate the employee material damage caused as a result of unlawful deprivation of his opportunity to work

The employer is obliged to compensate the employee for the earnings not received by him in all cases of unlawful deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of:

illegal removal of an employee from work, his dismissal or transfer to another job;
the employer's refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job;
delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee.

Labor Code of the Russian Federation, Article 237. Compensation for moral damage caused to an employee

Moral damage caused to the employee by unlawful actions or inaction of the employer is compensated to the employee in cash in the amount determined by agreement of the parties to the employment contract.

In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

In addition, a negligent employer will be imposed administrative penalty from 30 to 50 thousand rubles for legal entities, up to 5 thousand for individuals and officials, and if the violation was not committed for the first time, then criminal liability is also possible (Article 5.27 of the Code of Administrative Offenses).

Delay or refusal to pay due compensation also threatens the employer with a large fine and suspension of the enterprise.

The organization will be obliged to pay employees a calculation with interest for each day of delay (Article 236 of the Labor Code of the Russian Federation).

Moreover, for a long non-payment of wages and other mandatory benefits and compensations (more than two months), criminal liability is provided (Article 145.1 of the Criminal Code of the Russian Federation).

Labor Code of the Russian Federation, Article 236. Material liability employer for the delay in payment of wages and other payments due to the employee

If the employer violates the established “term”, respectively, for the payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one hundred and fiftieth of the current at that time key rate Central Bank the Russian Federation from the amounts not paid on time for each day of delay starting from the next day after the due date of payment up to the day of actual settlement inclusive.

In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time.

The amount of monetary compensation paid to an employee can be increased collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the fault of the employer.

Important. If the employee believes that the employer has violated his rights, you should file a complaint with the following authorities:

trade union (if any);
labor inspection (located at employment services);

Litigation is the last resort As a rule, in case of disagreements with the employer, all disputes are resolved with the involvement of trade unions and the department for the protection of workers' rights.

It is better to comply with all the obligations of the employer when reducing staff under current law. Violation of the rights of employees can lead to serious troubles and financial losses. Arbitrage practice shows that in such situations the authorities always take the side of the workers.