Top 6 mistakes during staff reduction that can lead to the reinstatement of an employee. Guide to HR Issues

Is it possible to renew the position on the staff list?

The organization has the right to restore a position similar to the one it had during the reduction, provided that the procedure for dismissing an employee to reduce the number and staff was carried out correctly and legally. This follows from paragraph 10 of the resolution of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” which states that for the purpose of effective economic activity, the organization makes all personnel decisions under its own responsibility.

The most important point in this matter is whether the reduction was real or formal.

How long will it take?

If the reduction was not carried out to eliminate an “undesirable employee” and the employer can prove that the entire procedure was carried out in accordance with the law, then the position can be restored after any period of time at the discretion of the organization. We talked about how, in accordance with the law, the dismissal procedure for redundancy should be carried out here.

It is worth returning to the same job from which you were laid off if you are called

If you left your previous job with regret and liked the work, then it’s worth returning. Unfortunately, the difficult economic situation in the country as a whole leads to job cuts and employers have to lay off even good workers or offer them to resign of their own free will. The banal reason is no work and no money for wages. But, as soon as the opportunity arises to return proven workers, he does so. It is unknown which workers will come from the “street”. And the fact that you were offered to return is very good - it means they value and respect you. If you were satisfied with the working conditions and the team, then I advise you to return. In a new job, you don’t know how things will turn out and you could get laid off again. And when you return to your previous place of work, you can carefully hint at an increase in wages. Nowadays, quite often they don’t even lay off people, but simply ask them to resign on their own. This is due to an insufficient number of orders in production, for example, in winter in construction or manual labor is replaced by automation. But the period passes, something changes and they ask you to work again. If you like the job you are invited to, then you need to agree. It’s just that you need to look at this situation (downsizing) not in the way that at one time you were not valued as a good employee and therefore you were laid off, but on the contrary, you sat at home, rested, and even received money from the layoff, and now with renewed vigor you go to work.

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Is it likely that the employee will return?

Reinstatement includes returning to the previous place of work, to the position specified upon hiring and with the salary established before dismissal.

If the rights prescribed in Article 21 of the Labor Code of the Russian Federation are violated, the employee has the right to reinstatement. The grounds include:

Lack of a written employment contract.
Absence of essential conditions in the text of the contract (responsibilities, payment, workplace, etc.).
Adding functional responsibilities to an employee.
Unlawful change of place of work.
Dismissal on invalid grounds.
Dismissal without warning.
Dismissal due to disciplinary sanctions.

If a person was laid off legally

If the staff reduction was made legally, a reduction order was drawn up with a detailed description of the reasons why such a decision was made, you need to pay attention to other conditions for challenging the dismissal:

Retrenchment of an employee from protected categories:
- Pregnant woman.
A person raising a young child under 14 years of age or a disabled person under 18 years of age without a mother.
A single mother raising a child under 14 or a disabled person under 18.
The sole breadwinner of a child under three years of age or a disabled person under 18.
Large family with three or more children over 14 years old.
The second parent is unemployed.

You will find out in this material which employees have the preferential right to work when staffing is reduced, and here we talked about the category of employees who cannot be fired due to reduction.

The reduction does not take into account the right to retain employees with higher qualifications. The preemptive right is not considered if the position held is unique, or if identical positions are being eliminated.
Incorrect or untimely notification of layoffs. The employer is required to notify in writing against signature at least two months before the layoff.
The employee was not offered all suitable vacancies.
The employee's dismissal documents were incorrectly completed.

If there is at least one of these conditions, even if the worker’s layoff is legal, he has the right to go to court with his further reinstatement.

If illegal

The most common cases of illegal dismissal include:

Several disciplinary actions followed by dismissal. In this case, it is necessary to determine whether the punishments applied were lawful.
As someone who has not passed the certification, if it was carried out only for one employee or the certification procedure was not followed.
Pressure from superiors, threats, obstacles to the normal work process, which entails writing a letter of resignation.
Refusal to withdraw a resignation letter if the new employee is not officially hired.

If such conditions are met and there is evidence supporting them, a person has the right to appeal to the court or to the labor inspectorate.

In order to subsequently avoid unpleasant proceedings, the dismissal procedure for reducing the number and staff of employees must initially be carried out competently. The following publications from our experts will help you understand many of the nuances:

What documents will the employer need to prepare when dismissing employees due to layoff?
What payments and compensations are due to an employee upon redundancy?
Early dismissal due to staff reduction.
How to properly lay off an employee after sick leave?
Features of dismissal of pensioners due to reduction.
How to properly reduce personnel during reorganization or closure of a company?
How to transfer an employee to another position during layoff?

After being laid off, when can you return to the same organization?

A new look at problems combined with detailed knowledge of the situation can work wonders. If you have received an offer to return to your old job (or if you are considering approaching your former manager with this question), do not rush to make a decision. And it’s one thing if the “parting” was peaceful and quiet, but quite another if the “parrot” flew away noisily, demonstratively and didn’t even wave its wing goodbye. In this case, the employer has every right not to support the employee’s idea of working again in his native company, since he will expect another trick from him, and working with those you don’t trust is very difficult. So, the leadership is more or less clear, let’s return to our “parrots”. They are also tormented by doubts: they left their previous place of work to find something better, or just because of what seemed best at that time, but they were disappointed, did not get what they wanted, and now they are forced to bite their elbows and be afraid of the ridicule of former colleagues and jokes like: “Well, have you tried it? Have you finally decided to start working seriously?”

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How to proceed through the court?

According to Article 391 of the Labor Code of the Russian Federation, on the basis of a statement from an employee, prosecutor or representatives of a trade union organization, the court must consider any violations, regardless of the reason for the appeal.

Procedure for going to court:

Drawing up a statement of claim. The Code establishes a period for protecting the employee’s rights equal to one month from the date of dismissal; it will not be possible to file a claim later if there are no compelling reasons for the court.
Sending a statement of claim by mail or submitting it to the court in person.
Waiting to agree on a court date.
On the appointed day, appear in court, or notify the court about considering the application in your absence.
If a positive decision is made, the administration of the enterprise is obliged to reinstate the employee starting from the day following the date of the decision.

Important: the employee must also, by a court decision, receive lost earnings for the period from the date of dismissal to the official return to work.

Where is the claim filed?

The completed claim is sent to the district court at the place of work or at the place where the employer carries out activities, depending on which of them is stipulated in the employment contract. In some cases, the law allows you to send a claim to the employee’s place of residence.

How to make an application?

The statement of claim must include:

A header with the details of the parties: the court, the applicant and the defendant.
Date of hiring, position, organization, end of work.
Was there a notice of layoff and when?
Were any vacant positions offered, and what kind?
A list of conditions and circumstances that make this reduction illegal in relation to the applicant.
Application for reinstatement to a reduced position in the specified organization.
An order to oblige the defendant to pay moral damages/wages compensation for time without work/other expenses.

The statement of claim must include:

A copy of the work book.
A copy of the layoff notice.
A copy of the list of positions offered in connection with the reduction.
A copy of the dismissal order.
A copy of the statement of claim for reinstatement.
Other documents that can prove the illegality of the employer’s actions (for example, information about a disabled child, a large family, or pregnancy).

The statement of claim must be made either in printed or handwritten (legible) form.

Reference. The advantages of resolving issues through the court include the possibility of demanding compensation for moral damage and changing the wording of dismissal in the work book; state duty is not paid.

How long does it take to process a case and what is the state fee?

Filing a claim for reinstatement of an employee is not subject to state duty. The time during which the court will consider the case directly depends on the individuality of the situation. If each party has significant evidence in their defense, the case may drag on for several hearings. Some cases can last up to a year.

How long after a court decision will a fired person be returned to the workforce?

The employee must be reinstated to his previous position immediately, that is, on the day the decision is made, an order must be issued to cancel the dismissal and reinstatement with subsequent payments signed by the employee. If there is a delay in the execution of a court decision, a fine of 10,000 to 50,000 rubles may be imposed.

We talked about what an employee should do after dismissal due to layoffs, as well as in what cases he can go to court to be reinstated in his position in a separate article.

How to reinstate an employee?

To reinstate an employee to his previous position, he must:

Issue orders to cancel the dismissal, restore the employee to his previous position and pay appropriate compensation. It is impossible to re-hire an employee; it is necessary to restore the position that was before the dismissal.
Make changes to the work book, time sheet and personal card.
Provide the employee with access to perform job duties.
Make all payments due to the employee.

Do I need to write an application for admission to the post again?

Since there will be no order for employment, but a cancellation of dismissal, there is no need to re-write the application.