Preferential right to remain at work during staff reductions: who cannot be fired?

According to the Labor Code of the Russian Federation, the basis for dismissal of an employee initiated by the employer may be a reduction in staff or number of employees.

Reduction of staff means that a certain position is abolished and all employees occupying it will be fired. A reduction in the number of employees means that the position remains, but the number of employees occupying it decreases. In both the first and second cases, the reduction process must take place according to the established procedure, without violating the rights of the employee.

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Notification of layoffs

Having made a decision about an upcoming layoff, the employer is obliged to notify the employee personally about this in writing, at least two months before the start of layoffs. The fact that the employee was properly served with notice of layoff will be indicated by his signature on the letter.

The fact that an enterprise is preparing to lay off workers must be reported not only to those who are being laid off, but also to the trade union organization and the employment service. The deadline for notifying the elected body of the primary trade union organization is the same as for the employee, i.e. no later than two months before the start of layoffs , and in case of mass layoffs - three months .

Dismissal of trade union members due to layoffs is possible only with the consent of the trade union organization. The period for notifying employment services about future layoffs is the same - two months before the start of measures to dismiss workers.

For employers working as individual entrepreneurs, this period is two weeks. In its appeal to the above authorities, the employer must provide complete information about the position, qualifications and working conditions of each dismissed employee.

Employer's liability

As a rule, those who are not laid off in the first place know their rights, so real layoffs do not come to pass. However, the employer may take the first mandatory steps to implement such dismissal.

According to the legislation of the Russian Federation, the employer is obliged to notify the employee in writing about his layoff at least two months before the event itself.

At the same time, if you fall under the protection of the Labor Code of the Russian Federation or enjoy certain benefits, then already at this stage, having attached all the documents giving you benefits, you have the right to go to court.

In the vast majority of cases, the employee wins the case, and the employer not only reinstates him in his position, but also compensates for all material costs of the trial and moral damage.

REFERENCE : How an employer cuts employees: for example, a company of 100 people needs to cut its staff by half. First, those persons who cannot be fired completely are excluded (the first point we described), then the qualifications, experience and value of the employee are studied, and finally, categories that enjoy social advantages are considered.

One of the most controversial points is dismissal based on qualifications . If you have documentary evidence of an employee’s advantage when laying off workers, showing that he is more important to the company than the colleague left in the position, then you can safely go to court and fight for your position.

Guarantees for laid-off workers

According to the law, when reducing the number of employees or staff, the employer must offer the dismissed employees another position at this enterprise.

In this case, the proposed position must correspond to the qualifications of the employee and his state of health, however, it can be either lower-ranking or lower-paid. When being laid off, the employee has the right to receive from the employer information about all vacancies that exist in the given locality or, if provided for by the collective agreement, outside it.

And only if the employer cannot fulfill its obligations to the employee to provide him with a vacancy or the employee refused to provide written consent to the proposed job, can a reduction be made.

If the parties have reached an agreement, there is no need to wait until the end of the two-month period to terminate the employment contract.

Employee qualifications - what is it and how is it confirmed?

The qualifications of an employee mean that he or she meets the necessary requirements (Article 195.1 of the Labor Code of the Russian Federation):

• knowledge;
• skills;
• professional skills;
• experience.

The set of relevant requirements depends on the specific specialty and position held by the employee. Typical lists of them are contained in:

• professional standards;
• a unified qualification directory of positions for managers, specialists and employees;
• unified tariff and qualification directory of works and professions of workers.

The employer can specify and detail the description of the requirements necessary for each position available to him in the job description.

The availability of appropriate qualifications must be documented. These may be documents:

• about education, advanced training, retraining;
• about the work experience required for the desired position or specialty;
• on the results of certification and independent assessment of qualifications;
• recorded labor achievements;
• containing reviews from immediate supervisors, colleagues and contractors.

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Preferential right to remain at work in case of staff reduction

The guarantees established by law for laid-off workers also include a preferential right to remain at work during layoffs. This right is that the employer will have to leave at the enterprise the employee whose qualifications are higher and whose quality of work is better than that of others.

If there are several such employees, then, according to the law, the following categories have the right to retain their positions:

• - workers who support two or more disabled family members;
• - workers whose earnings are the only source of income for the whole family;
• - employees who were injured or have an occupational disease while working at this enterprise;
• — disabled people of the Great Patriotic War and disabled people who took part in hostilities to defend the state;
• - employees who improve their qualifications at the place of work in the direction of the employer.

A collective agreement drawn up at an enterprise or organization may indicate an expanded list of categories of workers who have a preferential right to remain at work in the event of staff reductions.

In addition, the Labor Code of the Russian Federation protects from layoffs pregnant women, mothers raising children under three years of age, single mothers raising children under fourteen years of age, or a disabled child under eighteen years of age, as well as those who The following categories of children are being raised.

Employees who are on vacation or sick leave due to temporary disability at the time of layoff cannot be dismissed In case of violation of this norm, the employee has the right to appeal the dismissal in court and be reinstated in his previous position.

This must be done within one month from the day the employee received a copy of the dismissal order or from the moment the work book was issued. Otherwise, you will have to restore the missed deadline in court. According to the Civil Procedure Code, the prosecutor must make his conclusion on issues of reinstatement, and he can also appeal the court’s decision.

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Case 2. Don’t forget to provide vacancies

According to Part 3 of Article 81 of the Labor Code of the Russian Federation, an employee can be dismissed on the basis of a reduction only if he refused to move to another vacant position offered to him in the same organization.
Maria Gritchina: “According to existing judicial practice, dismissal due to a reduction in the number or staff is allowed if it is impossible to transfer an employee with his written consent to another job available to the employer (both to a vacant position or a job corresponding to the employee’s qualifications, and to a vacant lower-level position) position or lower paid work), which he can perform taking into account his state of health. The manager is obliged to offer the employee all vacancies available in the given area that meet the specified requirements.”

Very important: the fact of a vacancy offer, as well as the employee’s consent or refusal to take a vacant position must be documented. However, even refusing a vacancy does not guarantee that the employee will not sue and win.

Arbitrage practice:

“E.N.N. was reinstated as a telegraph operator after her claim against Company S was satisfied.

E.N.N. was familiarized with the dismissal order and the list of vacancies in due time. The defendant insisted that the employee chose one of the vacancies offered to her (a temporary position as a 1st class telegraph operator during the maternity leave of another employee), but later refused it.

However, during the investigation it was established that the company also had a vacancy for a 2nd class telegraph operator, which provided for a contract for an indefinite period. This vacancy was not offered to the plaintiff, which became the basis for the court’s decision in favor of E.N.N.”

Decision of the Central District Court of the city of Omsk dated April 19, 2007.

Of course, sometimes companies, with the help of a lawyer or administrative resource, manage to avoid liability for such forgetfulness. But, as Maria Gritchina emphasizes, courts of appeal and cassation, as a rule, do not forgive such mistakes.

When deciding which vacancies to make available to redundant candidates, there are several factors to consider. First of all, the experience and qualifications of the employee.

Maria Gritchina: “It is worth remembering that when deciding on a transfer to another position, it is also necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience (Part 3 of Article 81 of the Labor Code of the Russian Federation, paragraph 29 of the Resolution of the Plenum Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Employee's right to severance pay

An employee whose employment agreement has been terminated due to a reduction in staff or numbers has the right to receive severance pay from the employer . The amount of the benefit must be equal to the average monthly earnings during the period of work at the enterprise or organization.

The average monthly salary must be retained by the employee who has lost his job for the entire time needed for employment, but no more than two months from the date of dismissal. Payment of severance pay can also be made in the third month after dismissal, but only if, after the layoff, the employee registered with the employment service and within two weeks they could not find a new job.

An employment or collective agreement may stipulate increased amounts that are paid to employees in the event of layoffs. For those who work in the Far North or areas with the same status, labor legislation determines longer terms for payment of severance pay in the event of layoffs.

For unworked vacation days due to layoffs, deduction from wages is not allowed.

As we can see, the state protects citizens from unjustified layoffs, establishes compensation in case of job loss, and gives citizens the opportunity to challenge their dismissal.

What to do after receiving notice of layoff?

Do nothing in the first minutes or even hours. Any legal documents must be taken into account with a calm mind.

• Read the redundancy notice carefully. Pay attention to the dates, bank details, and the presence of the manager’s signature.
• Read the list of vacant positions that you can apply for in the event of a layoff. It must also be certified by the signature of the head of the enterprise.
• Find out whether the trade union committee agrees to the reduction.
• Sign the documents and work quietly for another 2 months, if you agree and do not belong to one of the following categories of citizens: pregnant woman;
• a woman (or other person) raising a child under 3 years of age;
• a single parent (or other person) raising a child under 14 years of age, or up to 18 years of age if the child is disabled;
• the only breadwinner in a family with 3 or more children.

You can agree in writing to the administration's proposal for early dismissal. In this case, you are paid the average salary for the remaining period and all other money due for reduction.

Execution of orders for the creation of commissions

When a positive decision is made to collect a commission, the first action on the part of the employer is to issue an appropriate order with information. The document becomes the main basis on which the commission meets.

The employer has the right to decide what the document will be, since there is no standardized form.

Table 1. Information in the order on the creation of the commission

Is it possible not to sign a notice of staff reduction?

Yes, you can. The countdown will begin only from the moment you sign the notice of reduction. If the document does not contain the signature of the manager or the date of review, it cannot be signed.

Also, if you do not agree with the actions of management or belong to one of the categories of citizens listed above, you can, without signing any document, file a claim with the labor dispute commission.

The employer may ask you to state in writing your reasons for refusing to sign the documents. Write explanations in two copies , have your copy certified by the secretary. This document can also testify in court, both in your favor and in favor of the head of the enterprise.

But you can refuse these actions. If you again do not agree, the administration has the right, in the presence of witnesses, to draw up an act reflecting the fact of the warning about the reduction and your refusal to sign.

If the labor dispute commission decides the case is not in your favor, the countdown of 2 months of revision will begin from the day the act is drawn up. Next, the employee has the right to appeal to the people's court ( Article 201 of the Labor Code of the Russian Federation ).