In the process of reducing the number or staff of workers, each employer is obliged to offer employees other vacant positions that correspond to the qualifications and education of the employees. Transfer to another position due to layoffs is an important process that must be carried out in compliance with certain rules.
What vacant position the employer must offer, how the procedure for transferring to another position is carried out, as well as the list of related documentation, we will consider all the points in more detail.
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When a redundancy event is carried out, the employer must offer the redundant persons another suitable position. The new location must correspond to the qualifications, education and health status of the workers. This point is clearly explained in Article 180, Part 1 and Part 3, Article 81 of the Labor Code of the Russian Federation.
What unit can they offer?
When selecting a new workplace, you should pay attention to the following existing rules:
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- What is the employer obliged to give the employee on the day of dismissal?
- The vacancy must be with the same income level.
- It is necessary that the position corresponds to the qualifications and education of the worker.
- If there is no such vacancy, you need to find a lower position.
- A new vacancy may also be less paid if there are no others in the organization.
- Positions are offered only within the employee's region of residence.
- If the position is of a higher level, but is located in another locality, the employer is not obliged to offer it to the reduced person. An exception may be reverse data that is specified in a collective agreement concluded earlier.
A person who has held a leadership position at an enterprise for a long time and has been laid off may well receive an offer to work as a janitor or cleaner in the same organization.
However, if a similar managerial position is empty in a neighboring department of the company, and the manager does not offer it to the employee, then the latter has the right to appeal to a judicial authority to protect his rights.
The employer must warn persons who have been laid off no later than two months before the procedure. This point is regulated by Article 180 of the Labor Code of the Russian Federation.
The warning must be issued in writing in two copies. One of them is issued to the laid-off employee, and the second is transferred for storage to the HR department.
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
The notification must indicate the date the document was generated. Instead of layoffs, the employer may offer the employee work on a part-time or weekly basis. If the worker does not agree, management will decide to dismiss him due to the reduction.
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– I received a notice from my employer that my position has been reduced. I was not offered any other job. I am raising a minor daughter alone, and I have no relatives who can help me financially. Can I be laid off?
– According to Article 45 of the Labor Code (LC), when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications. Under equal conditions, the priority right to remain at work is given to the following categories of workers: participants in the liquidation of the consequences of the disaster at the Chernobyl nuclear power plant; those who fell ill and suffered radiation sickness caused by the consequences of the disaster at the Chernobyl nuclear power plant and other radiation accidents; disabled people; other categories of employees provided for by law, collective agreement, or agreement. Trade union workers are also protected from layoffs.
According to Article 268 of the Labor Code, it is not allowed to terminate an employment contract at the initiative of the employer with single mothers with children aged 3 to 14 years (disabled children under 18 years old), except in cases of liquidation of the organization, termination of the activities of a branch, representative office or other separate division of the organization located in another area, termination of the activities of an individual entrepreneur.
Single mothers, who are subject to the guarantees provided for in Article 268 of the Labor Code, should include women who are not married and have children, in whose birth certificate the father is recorded in the prescribed manner at the direction of the mother, as well as widows (widowers) who have not remarried and are raising minor children.
If the employment contract is terminated at the initiative of the employer in violation of the terms of the collective agreement, agreement, procedure and conditions of dismissal or additional guarantees for dismissal established by the Labor Code, then the dismissal of the employee is illegal and he is subject to reinstatement.
Such issues are resolved through the courts, and when considering individual labor disputes, employees are exempt from paying legal costs.
– An employee who is warned about dismissal due to a reduction in the number or staff of employees during the warning period writes a statement of his dismissal, according to paragraph 1 of Article 42 of the Labor Code (the initiative for early dismissal comes from the employee). The employer agrees to the dismissal and issues a dismissal order before the expiration of the notice period. Should the employer replace the missing period specified in the notice with monetary compensation in accordance with Part 4 of Article 43 of the Labor Code?
– When terminating an employment contract in accordance with clause 1 of Article 42 of the Labor Code, the employer is obliged to notify the employee in writing of the upcoming dismissal at least two months before dismissal, unless longer periods are provided for in the collective bargaining agreement or agreement.
According to Part 4 of Article 43 of the Labor Code, the employer has the right, with the consent of the employee, to replace the warning about the upcoming dismissal with payment of compensation in the amount of two months' average earnings. Moreover, if the initiative to reach such an agreement comes from the employer after warning the employee about the upcoming dismissal, compensation is paid in proportion to the time remaining before the end of the two-month warning period.
Reaching an agreement between the employee and the employer to replace the warning about the upcoming release with monetary compensation must be expressed by the employee in writing. The replacement of the warning can be not only complete (instead of 2 months of work - two months' earnings), but also partial. For example, if a proposal to replace the issued warning with monetary compensation was received from the employer after a month of warning about the upcoming dismissal. In this case, monetary compensation is paid for the time remaining before the end of the two-month warning period. This amount is paid in addition to severance pay, the payment of which is provided for in Article 48 of the Labor Code.
In this case, the employer has the right to refuse an employee who demands that the warning be replaced with monetary compensation. In this situation, the employer is not obliged to replace the notice period with monetary compensation, since the initiative for early termination of the contract during the notice period comes from the employee, and not from the employer.
In the event of termination of an employment contract in connection with the implementation of measures to reduce the number or staff of employees, severance pay is paid in the amount of at least three times the average monthly salary (Part 4 of Article 48 of the Labor Code).
– Does the employer, as part of measures to optimize the organization’s staffing levels, have the right to move an employee to a workplace located in another area?
- Not entitled. Relocation is recognized as the assignment by the employer to an employee of the previous job in a new workplace, both in the same and in another structural unit, with the exception of a separate one, on a different mechanism or unit, but within the limits of the specialty, qualification or position while maintaining the working conditions stipulated by the employment contract.
Separate divisions, in addition to branches and representative offices, include structural divisions of an organization located outside its location or located at its location, but having a separate balance sheet, a current bank account with the right to dispose of funds in the account to officials of this separate division on the basis of a power of attorney issued by the organization that created it. Consequently, a structural unit located in a different area relative to the place of registration of the legal entity will be separate.
According to the official website of the Federation of Trade Unions of Belarus
Documents for translation
The process is accompanied by a massive package of documentation. So, let's look at each document separately.
Act of notification of availability of another unit
The notification is issued in free form. This is due to the fact that the Labor Code of the Russian Federation does not provide for a different format for such a document.
When generating a notification, you must take into account the following points regarding the rules for drafting:
- The document is drawn up on the organization’s letterhead with the obligatory indication of the name of the enterprise. Since each individual employee must receive the notification in person, the document must include the full name, position and department of the specific worker to whom the paper is addressed, as well as his residential address.
- Each notification must have its own serial number and date of generation.
- Mandatory indication of compelling reasons for the reduction.
- The notification document must include the number and date of the basis order.
- notifications of vacant positions during layoffs
- notifications of vacant positions during layoffs
When filling out an information letter, it is very important to take into account all the nuances so that the document cannot be challenged in court.
Moreover, the notification must contain a separate paragraph indicating the proposal for existing vacancies that the worker is offered to occupy, preferably indicating the salary.
It is also advisable to record information about the employer’s right to terminate the employment contract early before the expiration of the two-month period.
The notification is endorsed by the responsible executive, the head of the HR department or the manager of the company. At the end of the document, the signature of the shortened person and the date of receipt of the notification are recorded.
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You can include an additional line about the worker’s consent or disagreement to take the proposed positions.
Application for transfer
The employee must write a transfer application, which should include the following data:
- Desired position and salary level (in accordance with the regular salary).
- Full name and position of the manager, name of the enterprise.
- Employee's full name.
- Document's name.
- The current date is indicated at the bottom and the employee’s signature is placed.
- applications for transfer to another position
- applications for transfer to another position in case of layoffs
Additional agreement
This important document is prepared when information in the employment contract changes. The additional agreement is an indisputable annex to the agreement. In this regard, the agreement is drawn up in two copies. One is intended for the company management (HR administration department), and the second is given to the worker.
The document must include:
- Name and number.
- Mention that there are two parties involved.
- The main part.
- Please note that all other provisions will not change.
- Number.
- Details of the parties (company data and personal information of the employee, including full name, passport details, etc.).
- Signatures of both parties. Instead of the employer, only the director has the right to endorse the document.
- additional agreement on transfer to another position in case of layoff
- additional agreement on transfer to another position in case of layoff
Order
When drawing up an order for transfer to another position, it is important to adhere to the established form. The company has the right to use its own letterhead. However, it is mandatory to include the following details in the document:
- Name – order.
- Number.
- The wording is about transfer to another position.
- Full name, position, department of the employee.
- From what number is it transferred?
- The basis is an offer from the employer or a statement from the employee.
- Transcripts and signatures of authorized persons and the employee himself.
- Date of formation of the order.
- order for transfer to another position in case of layoff
- order for transfer to another position in case of layoff
Is it possible to refuse?
A worker may refuse to be transferred to another position - this is his legal right. Moreover, after the employee refuses, no negative consequences will follow for him.
However, if the employer does not have any positions in reserve that would be empty at the moment, then the employee’s refusal of the proposed transfer in this case will lead to the final termination of the employment contract and, accordingly, the business relationship (about how the procedure will take place in this case dismissal of an employee, find out here).
To summarize, we note that any employer during layoffs is obliged to offer its workers other vacant jobs. This is regulated by law.
The transfer of employees to new places is accompanied by the execution of a notice, application, order and additional agreement when the main employment contract is changed. The employee has the right to refuse offered vacancies.
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Is it possible to refuse a job offer if you are made redundant?
It often happens that employees sign up for vacancies offered to them without looking, fearing that otherwise they will simply be fired without any severance pay. In fact, this is not only wrong, but if your employer threatens you with a lack of benefits, it is simply illegal. If the employee is not satisfied with anything proposed, he has every right to refuse the proposals and, after a two-month period, will simply be dismissed due to reduction - according to the standard procedure, with an entry in the work book and the issuance of an average monthly salary.
Moreover, if the organization has, for example, five vacancies that suit you, and no one has yet been invited to them in writing, and you were offered to move to only one, which is completely unsuitable for you, you have the right to complain about a violation of the dismissal procedure. After all, the employer is obliged to offer all available positions, except, of course, those that require higher qualifications than yours.
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Who can be laid off?
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
A worker may be fired due to a reduction in numbers or staff, but only if he does not have a preferential right to be retained at work and the employer does not have the opportunity to provide him with another job for which he agrees.
Employees whose labor productivity and qualifications are higher have significantly greater rights to remain at work.
In case of equal productivity and qualifications, the employer will give preference to:
- having dependents (two or more);
- those who have suffered injuries at work or illnesses associated with dangerous and harmful working conditions;
- disabled people of the Second World War;
- who became disabled in military campaigns related to the defense of the Fatherland;
- on-the-job training courses at the order of the employer;
- the only breadwinner in the family.
It is unacceptable for the following to be dismissed due to reduction:
- women on maternity leave;
- women with children under three years of age;
- pregnant women;
- single mothers raising children under 14 years of age (if the child is disabled, then until he reaches 18 years of age);
- other persons raising children under 14 years of age without a mother (if disabled children - until adulthood).
What can you offer an employee if their position is reduced?
Downsizing at an enterprise is a rather complex procedure, during which it is necessary to comply with the norms prescribed by the Labor Code, including articles 180, 179, 178, 81.
There are two options for reduction - number or staff.
In the first case, “extra” employees are fired, in the second, specific positions are eliminated.
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If the owner of a company intends to downsize staff and transfer an employee to another position, he must take care of finding new vacancies within the organization for the employees whom he intends to reduce.
This is stated in Article 81 of the Labor Code of the Russian Federation. At the same time, the owner of the company is obliged to offer such employees all vacancies, if any.
What position can they offer if they are made redundant? The following rules apply when selecting a new workplace :
- the vacancy must have a similar salary and meet qualifications;
- if there is not one, you need to find a lower position;
- a new vacancy may also be less paid if there are no others at the enterprise.
An exception is if the opposite is stated in the collective agreement.
Thus, a person who performed the duties of a manager and was laid off may well receive an offer to work as a watchman at the same company.
However, if there is a similar vacant managerial position in another department of the same enterprise, and the employer has not offered it to the employee, the latter can go to court.
According to Art. 180 of the Labor Code, the employer is obliged to warn staff about layoffs 2 months before the procedure. The warning is issued in writing in 2 copies.
One of them is given to each employee for signature and remains with him, and the second is kept in the personnel department.
The warning must indicate the date the document was drawn up.
Instead of layoffs, the employer may offer the employee work on a part-time or weekly basis. If the employee does not agree, the management makes a decision on layoffs.
Reduction procedure
To understand how an employee is transferred to another position when staffing is reduced, you need to understand how the procedure for terminating an employment contract should generally occur.
As in the general case, when reducing the number of employees, the following sequence is followed:
- agreement on the period of dismissal;
- issuance of an order for the enterprise;
- settlement on the last working day.
In this case, the employee usually writes a letter of resignation, but in case of layoffs, no statement is required from him - after all, the initiator is the employer. But a mandatory condition for dismissing employees due to layoffs is notification of the upcoming event.
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Notification
Two months before the expected date of layoff, written notice must be sent to each employee warning that he is among the future layoffs. Under this notification - strictly individual - the employee must sign with the obligatory decoding of the signature.
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Employee statement
Since, as mentioned above, the initiator of dismissal is the employer, a statement from employees is not required: there is a notice signed by the employee, there is an order - and these are sufficient grounds for terminating the employment relationship.
If the employer begins to demand a statement from you, and even with the wording of your own free will, you can safely refuse, and if they continue to insist, then threaten with legal proceedings for violating the dismissal procedure.
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Payment to employee
According to the law, employees who are subject to staff reduction, upon dismissal, in addition to the mandatory payment of wages, bonuses (if they are due according to the terms of payment in the organization) and compensation for unused vacation days, are also entitled to severance pay in the amount of average monthly earnings.
The organization must pay the same benefit if the former employee has not found a new job within a month after dismissal. And if an employee managed to register with the employment service within two weeks after losing his job and did not find a job two months after his dismissal, then he can count on a third payment in the same amount as the first two.
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Labor legislation
Before getting interested in the subtleties and nuances of the process, let’s find out what labor legislation generally says about layoffs. Is it even possible for an employer to carry out such actions?
Code articles
A reduction in the number or staff of an enterprise may well be carried out. This is considered termination of the employment contract at the initiative of the employer, and if the latter has no other choice but to reduce the number of his subordinates, then paragraph 2 of Article 81 gives him such a right.
At the same time, the employer’s actions must not violate other articles of the Labor Code of the Russian Federation.
So, for example, the boss does not have the right to lay off a pregnant woman, since this would contradict Article 261 of the Labor Code.
Difference between abbreviations
Of course, if you are in the position of an employee that the company wants to get rid of, you may not care how you are fired: by reduction in headcount or staffing levels, but understanding what the difference is can be useful.
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
A downsizing is simply a reduction of people in an organization, regardless of their positions. That is, when out of five accountants, three are retained, and two are fired, two security guards are retained, and eight more are fired - this is a reduction in numbers.
Staff reduction is the removal of a position completely from the list of positions in an organization. For example, three watchmen and two security guards were listed on the staff list, but the positions of the guards were completely removed - this will be a reduction in staff.
Most often, experts recommend that employers take the second route of reduction, since in this case they may not adhere so strongly to the preemptive right. We will talk about what this is below.
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Change of position
Transferring an employee to another position is a very important procedure, especially when it comes to reducing staff or numbers. In this case, its necessity is dictated by the articles of the Labor Code of the Russian Federation.
Transfer to another job means a change in the employee’s job functions. Thus, this concept is interpreted by the first part of Article 72.1 of the Labor Code of the Russian Federation.
Moreover, an employee can change a structural unit, even an employer.
Retrenchment is considered one of the ways to terminate an employment contract, initiated by the employer who has no choice but to reduce the number of personnel. The second paragraph of Article 81 of the Labor Code of the Russian Federation gives the employer this right, unless other articles are violated.
A downsizing is a reduction in the number of people, regardless of the positions they occupy (for example, out of five accountants, 3 are left). Reduction of staff (staffing units) is the removal of a specific position from the list of positions completely.
What can be offered to an employee?
No matter which employee is included in the layoffs, the employer cannot do this as he wants. He must meet certain conditions for his actions to have legal force.
He must first offer a transfer to another job within his organization. The law dictates quite clearly:
- the new position may be paid in the same way as the previous one and have similar qualification requirements;
- if there is none, a lower one can be selected;
- the proposed vacancy may turn out to be lower paid if no others are found in the organization’s staff.
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In this case, the employer is obliged to offer the employee a redundancy transfer to a job that he can perform due to health reasons. If such is provided for by a collective or labor agreement (any other agreement), vacancies may be offered in another location. In addition, the employer is not obliged to offer the employee a higher position or vacancy.
If there are no vacancies of your own, there is an alternative - you can agree with business partners to transfer employees to another position in a partner company. To do this, you will need a list of vacancies compiled together with the management of a friendly company, a predetermined salary level and qualification requirements for each position.
An official letter of invitation to work will be required on behalf of the director of the counterparty. The law does not impose any special requirements on the form of the letter - it is enough that it contains information about the laid-off employees who are offered vacancies, information about the proposed positions and the date from which employment is possible. This document should convince employees that after dismissal they will not be left without work.
With such a letter, a person can even go to court if suddenly the employer refuses to hire him, and he wins the case.
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
The letter of invitation received by the company's mail should be familiarized to the laid-off employees so that they can express their attitude to the employer's offer: consent or refusal.
Transfer to another position due to staff reduction
No matter who the employer plans to fire due to a reduction in numbers or staff, he again cannot do this just like that. First, dismissed employees must be offered to move to another place of work within the same organization.
The following conditions apply:
- the position may have the same pay and qualification requirements;
- the position may be lower;
- the position may be less paid.
The employer is not required to offer higher positions or vacancies in other regions.
An employee acting as head of a department should be prepared for the fact that he may be offered a courier position if there are no other available positions at the company. At the same time, if the position of head of a neighboring department is vacant, and the employee’s qualifications are fully suitable for it, but he is still offered to become a courier, he has the right to go to court.
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What are the actions of an employee who has been laid off?
In any case, the decision to accept or not accept management’s offer - to move to a new job or not to transfer - will be made by the employee himself. The employer has no right to coerce, force, intimidate or threaten him, otherwise he will have to answer in court.
It might make sense to consider new offers and choose one, even if it pays less:
- if you want to remain in your organization at any cost;
- you know for sure that very soon a new department will open where you will find a place in your previous position, you just need to wait it out;
- found a good job at another company, but the vacancy becomes available in a few months.
You can refuse the transfer - you will still receive severance pay.
Anyone who has been laid off must be offered all possible vacancies at the enterprise. In this case, proposals should be drawn up in writing, in the form of an act, with a description of each option: what position, responsibilities and salary. Three such acts must be drawn up:
- at the time of notification of the reduction;
- a month later;
- the day before the reduction.
New vacancies will be included in the acts as they arise. If the proposed vacancy is rejected, the employee will be dismissed at his own request with the right to receive severance pay and other mandatory payments from the company.
But if consent is received, the enterprise’s personnel service can begin processing the transfer in connection with the reduction.
When should you switch to a lower-paid job if you are laid off?
Whether or not to move to work where you are offered is up to you and only you to decide. Let us repeat once again, and you remember well: the employer has no right to force you, threaten you or intimidate you - all these actions can lead him to the bench. Don't be afraid to stand up for your rights!
When does it make sense to take a low-paid or unskilled job? For example, if you cannot imagine yourself outside this organization. Or if you know for sure that the difficulties with working at the enterprise are temporary and after some time it is planned to open a new department in which you can get a job in your previous position. Or maybe you found a new place of work, but they will be ready to hire you only after six months - then you can work temporarily for less pay.
The main thing to remember is that refusing a transfer does not deprive you of the right to receive severance pay.
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