An employer may terminate an employment contract if the organization's workforce is reduced(Article 42 of the Labor Code of the Russian Federation). This is a very common type of termination of employment relations with employees whose retention on the staff of the organization for some reason is inappropriate. A reduction in the staff of an organization is the complete exclusion of some positions from the working staff list.
This method is quite expensive in financial and time terms, but personnel services often resort to it, since it satisfies the interests of the employer and employee.
Article 42 of the Labor Code of the Russian Federation. The procedure for developing a draft collective agreement and concluding a collective agreement
The procedure for developing a draft collective agreement and concluding a collective agreement is determined by the parties in accordance with this Code and other federal laws.
How to commit changes?
There are two methods to record personnel changes::
- Prepare an order approving the introduction of a new staffing document.
- Issue an order to amend the existing schedule.
There is no unified form for such orders and the employer’s personnel service develops them independently.
The rules for making changes that need to be reflected in the staffing table directly depend on their number. If there are a large number of personnel changes affecting not only positions, but also structural units, it is better to create a new schedule. If the changes are isolated, it would be better to make changes to the current staffing document.
You can find out how to issue an order to change the staffing table in.
The management of the organization, at its discretion, determines the staffing level and composition of positions in the structure of the organization. The law does not oblige you to justify the reason for the reduction. But in the event of a trial, a big plus for the employer will be the evidence provided of the need to fire the employees.
Documents accompanying the procedure and their contents
It is important to correctly, without violating the established procedure, follow the procedure for laying off workers. The required documents will be a notice, memo and order. Let's talk in more detail about their compilation.
It is the employer's responsibility to warn the employee in writing about the layoff. A unified form of this document is not provided for by law; the personnel service draws it up independently. The notice is drawn up in two copies - to the employer and to the employee.
ATTENTION! If the employee refuses to sign the notification, a report is drawn up that must be attached to the notification.
The administration of the enterprise must, before dismissing an employee, offer him in writing available vacancies that are suitable for his qualifications and state of health. For each such proposal it is necessary to draw up an act.
The law establishes different deadlines for notifying laid-off workers:
- Employees performing work on the basis of an open-ended employment contract are warned 2 months before termination of the contract (Article 180 of the Labor Code of the Russian Federation).
- Those working under a fixed-term contract - 3 days in advance, Article 292 of the Labor Code of the Russian Federation.
- Those involved in the performance of work of a seasonal nature - within 7 days (Article 296 of the Labor Code of the Russian Federation).
An incorrectly formatted notice of termination of employment can cause disputes and conflicts. Therefore, the employer needs to take into account all the nuances when filling out this document.
Article 292 of the Labor Code of the Russian Federation. Termination of an employment contract
An employee who has entered into an employment contract for a period of up to two months is obliged to notify the employer in writing three calendar days in advance of the early termination of the employment contract.
The employer is obliged to warn an employee who has entered into an employment contract for a period of up to two months about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of employees in writing, against signature, at least three calendar days in advance.
An employee who has entered into an employment contract for a period of up to two months is not paid severance pay upon dismissal, unless otherwise established by federal laws, a collective agreement or an employment contract.
When reducing staff, the employer faces the urgent task of choosing employees, with preferential right to remain in the workplace. In this case, the head of the structural unit draws up a memo confirming the higher qualifications and labor productivity of a particular employee.
Order
The personnel service issues two orders in such situations:
- Order to reduce positions.
- Order on dismissal of employees.
The form of the order for reduction is not fixed by law. It is developed by the employer independently.
- Name of the organization.
- Title, number and date of the document.
- Summary.
- Reasons that influenced the staff reduction.
- List of employees subject to reduction or job titles (the number of units is also indicated).
- Date of approval.
- Indication of the persons responsible for the execution of the order.
- Signature of the manager and responsible person.
- in writing.
Sometimes it becomes an objective necessity for an employer to exclude one or more employees of the organization from the staff. Various reasons may contribute to this. In these cases, the employer resorts to reducing the organization's staff, which helps optimize the work process.
However, it should be remembered that the procedure for laying off workers is associated with many psychological and legal difficulties. It is necessary to correctly fill out all the necessary documents and comply with the deadlines required by law.
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We live in an unstable and constantly changing world. Modern technologies are changing rapidly, and the economic situation is changing just as quickly, which significantly affects the work of enterprises. Some of them are growing and developing due to the opening of new branches and departments. Others - due to the introduction of new, more advanced technologies, which leads to a decrease in the number of jobs and the release of certain positions. The consequence of this is a reduction in positions in the staffing table or the number of staff units.
Reduction of positions in the staffing table is carried out when jobs are reduced
Of course, not all employees will agree with the dismissal, so the employer must ensure that the administration strictly follows the step-by-step procedure for approving a new staffing table when reducing staff and eliminating positions from the old one.
Reduction in headcount or staff
One of the grounds for the possibility of terminating an employment contract initiated by the employer is a change in the staffing table and a corresponding reduction in headcount and staff. Before making a reduction, management and human resources must determine whether only the number of positions will be reduced or the number of positions will be reduced.
Downsizing is a reduction in the number of staff positions for a specific position. Staff reduction is the complete removal of a position from the staffing table.
Compliance with the dismissal procedure
When making changes to the staffing table when reducing employees, it is very important to prepare documents and carry out all procedures correctly. The process of reducing position(s) includes several activities:
Creation of a staff reduction commission
Once the decision on the need for reduction is made, the company's public needs to be involved in this process. In this case, by order of the director, a commission consisting of employees of the enterprise is created. This commission determines the legality of job reduction and whether specific employees have a preferential right to be retained in the team. The decision taken by the commission is documented in a protocol.
Article 179 of the Labor Code lists the categories of employees who have priority rights over other employees to remain at work. These include:
- employees whose families have at least two disabled members)
- workers in whose families there are no other persons earning income)
- employees who received injury or any occupational disease at this enterprise)
- disabled people of WWII and other military operations)
- employees who improve their skills on the job.
In addition, Article 261 of the Labor Code of the Russian Federation prohibits dismissal due to job reduction:
- women with children under 3 years of age)
- pregnant women)
- single mothers with children under 14 years of age (or disabled children under 18 years of age))
- other persons raising such children in the absence of the mother.
Reduction order
First, the head of the enterprise issues an order indicating which positions are subject to reduction. Then an order must be issued to approve the staffing table in connection with the reduction of employees.
Notifying employees and offering vacancies
Employees must be notified of subsequent dismissal, which causes a change in the staffing table due to a reduction in staff, at least two months before the dismissal. Moreover, this should be done individually and against signature. If the employee refuses to sign for receipt of the notice, then it is necessary to draw up an act in front of two or three witnesses confirming the fact of notification of dismissal.
Employees need to be offered available vacancies at the enterprise. This is not done once, but periodically from the moment the dismissal is announced. Employees need to be offered all vacancies that may appear in the company after the announcement of job cuts. Typically, notification of a vacancy in the staffing table during staff reduction occurs three times:
- when reporting a job reduction,
- a month after that,
- on the penultimate working day.
Employees need to be offered not only positions and vacancies that correspond to their current qualifications, but also those that are lower or less paid. The employer must offer all vacancies that meet these requirements and are located in this area. Vacancies from other localities should be offered only if this is stipulated in the employment or collective agreement.
When the staffing table is changed due to a reduction in staff and numbers, the company administration and the employer should not advertise the search for new employees for these positions. In addition, it is advisable not to introduce these positions back into the staffing table for at least six months after the reduction. Otherwise, the laid-off employee can prove in court that there was no actual reduction in staff, challenge the dismissal and return to work.
Temporary vacancies
A vacancy is a position that is provided for according to the staffing table and for the performance of work for which an employment contract has not been concluded. Based on this, a position occupied by an employee on long-term leave (for pregnancy, childbirth, child care) or temporarily transferred to another position is not vacant. Therefore, during layoffs, the employer is obliged to offer permanent vacancies to the laid-off employees.
At the same time, there is no direct ban on offering temporary vacancies in the legislation. When transferring employees from a position being reduced to a position that is vacant during the absence of a permanent employee, a fixed-term employment contract must be concluded with them.
Employment service notice
The employer is not obliged to introduce a new staffing table when reducing the number and staff
The employer must notify the employment service about this in writing and no later than two months before the dismissal, which causes the exclusion of the position from the staffing table during the reduction. If the reduction of a position in the company’s staff will lead to mass layoffs, then the employment service must be notified three months in advance.
The message to the employment service authorities must contain the position, profession, specialty and qualification requirements. Also, the terms of remuneration for each individual employee are communicated.
Redundancy payments
The exclusion of a position from the state involves the payment of compensation to dismissed employees who did not agree to the vacancies and did not remain at the enterprise in other positions. These employees are paid severance pay equal to their average monthly earnings. The same amounts are paid monthly while the dismissed person is looking for work (no more than 2 months, and in the northern regions - no more than 3). Termination of employment contracts is confirmed by an issued order; entries about “dismissal due to reduction in the number of employees of the enterprise” must be made in the work books.
On the last working day, the final payment is made to the dismissed employee and a work book is issued. An employee whose position has been reduced from the staff list builds all his subsequent relationships exclusively with the territorial body of the employment service. The responsibilities of this organization include employing citizens, paying them unemployment benefits, providing temporary disability benefits, the possibility of retraining, and so on.
Dismissal before two months
If an employee who falls into the redundancy category expresses a desire to resign earlier than two months after notification of the layoff, then there are two options for this:
- The employee writes consent to early dismissal. In this case, additional compensation is provided. Its size is determined by the time remaining before the expiration of the two-month period.
- The employee resigns of his own free will. In this case, he is not entitled to any compensation from the employer.
Preparation of documents for court
Excluding a position from the staffing table during a layoff has certain consequences.
An employee who does not agree with the decision made by the administration can challenge the legality of excluding a position from the staffing table on the day of the employee’s dismissal by contacting the judicial authorities.
First of all, the job reduction must actually take place. This fact should be confirmed by the staffing table presented to the court before the reduction procedure and the new staffing table when reducing the number and staff after its completion.
At the same time, the law does not oblige the employer to introduce a new staffing table when carrying out actions to reduce numbers/staff. It is legitimate to simply order to make changes to the existing one.
Judicial practice implies that the right to determine the staffing of positions and the number of employees belongs to the administration and the employer. However, despite the absence of a requirement for the employer to prove the validity of the decision to reduce positions from the staffing table, it is still recommended to draw up a feasibility study. The existence of this document will strengthen the employer’s position in court and will refute the employee’s arguments that the reduction of his position is far-fetched.
- HR records management
Key words:
1 -1
Will staff reductions be made by the employer before the new edition of the staffing table comes into force?
On this issue we take the following position:
The new version of the staffing table must be put into effect on the day of dismissal of employees.
Justification for the position:
Employees are notified by the employer personally and against signature of the upcoming dismissal due to a reduction in the number or staff of the organization's employees at least two months before the dismissal (part two of Article 180 of the Labor Code of the Russian Federation). In this case, the new one must be approved before the start of reduction measures (clause 2 of section “Application of substantive law” from the Review of judicial practice of the Supreme Court of the Republic of Kalmykia on consideration of civil cases in cassation and supervisory procedures in 2008, section “Termination of an employment contract at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation)" from the Generalization of the practice of consideration in the 1st half of 2008 by the courts of the Saratov region of cases of termination of an employment contract at the initiative of the employer and on other grounds not related to the will of the employee, etc.).
The date of dismissal of employees due to staff reduction should be determined not by the date of entry into force of the staffing table in the new edition, but by the expiration of the two-month period established by part two of Art. 180 of the Labor Code of the Russian Federation (see, for example, the cassation ruling of the Investigative Committee for civil cases of the Moscow City Court dated July 15, 2010 in case No. 33-21255, the resolution of the Presidium of the Supreme Court of the Ural Republic dated December 2, 2009 in case No. 33-3249, the cassation ruling of the St. Petersburg City court dated 06.12.2010 N 16436).
In our opinion, if the employer on the day of dismissal, recorded in the warning, did not exercise his right to reduce staffing (position), the employment contract continues (by analogy with part six of Article 80 of the Labor Code of the Russian Federation). The same conclusion can be drawn when the notice does not indicate the date of dismissal, but the employer missed the two-month deadline. Therefore, if the dismissal deadline is missed due to a reduction in the number or staff of employees, the dismissal procedure should be started again.
It does not follow from the provisions of the Labor Code of the Russian Federation how the moment of dismissal of laid-off workers and the moment of introducing a new staffing table should relate to each other.
In a number of cases, the courts indicate that the amended staffing table, from which the positions of laid-off workers are excluded, may come into force the next day after the dismissal of the relevant workers (see, for example, the cassation ruling of the Investigative Committee for civil cases of the Moscow City Court dated June 17, 2010 to case No. 33-17293 and dated June 25, 2010 in case No. 4g/3-3606/10).
However, an analysis of judicial practice shows that if terminated under clause 2 of the first part of Art. 81 of the Labor Code of the Russian Federation, and the corresponding position is excluded from the staffing table on the next day after dismissal or later, there is a possibility of reinstatement of workers dismissed due to staff reduction (section “Dismissal under clause 2 of Article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees)" Review of the practice of consideration by the courts of the Kaliningrad region in 2008 of civil cases on reinstatement at work, section “Disputes about dismissal from work in cases of reduction in the number or staff of an organization’s employees (clause 2 of Article 81 of the Labor Code of the Russian Federation)” Certificates on the results of generalization of judicial practice on cases of reinstatement at work, considered by the courts of the Samara region in 2008).
Therefore, when reducing staff, it is in the employer’s interests to ensure that the new staffing table (which does not include the positions of the laid-off employees) comes into force before the expiration of the notice period or on the day of dismissal. However, since until the moment of dismissal, laid-off employees must continue to perform their labor functions, the positions they occupy must be provided for in the staffing table (Article 15, part two of Article 57 of the Labor Code of the Russian Federation). The absence of these positions in the staffing table can be considered as a formal basis for bringing the employer to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation. Therefore, in our opinion, when employees are dismissed due to a reduction in the number or staff of the organization, a new version of the staffing table should be put into effect on the day of dismissal of employees (cassation ruling of the Penza Regional Court of November 20, 2007 N 33-2146).
A reduction in the number or staff of a company's employees is one of the grounds for termination of an employment contract at the initiative of the employer. Before proceeding with the procedure itself, you should clarify whether this will be a reduction in numbers or staff (). There is no official explanation of these concepts in labor legislation. In our opinion, the main difference is as follows. When staffing is reduced, the number of staff positions for a specific position is reduced, although the position itself is not abolished. But when staffing is reduced, a certain position is completely excluded from the staffing table.
The algorithm for dismissing an employee both during a reduction in the number of employees and when reducing the number of employees is general - we will analyze it step by step.
Step 1. Issue an order to reduce the number or staff
Having decided to reduce the number or staff, the head of the organization must issue a corresponding order. The law does not provide for a special form of order. The main thing is to reflect in it the reason and date of the upcoming reduction, as well as to note the positions being eliminated. The new staffing table should be approved by the same or a separate order.
Step 2. Take into account the priority right to remain at work
The preferential right to remain at work in the event of a reduction in the number or staff of employees is given to those employees whose labor productivity and qualifications are higher than those of others ().
If labor productivity and qualifications are equal, preference is given to:
- family workers - if they have two or more dependents;
- persons in whose family there are no other independent workers;
- employees who received a work injury or occupational disease while working in this organization;
- disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland;
- employees who improve their qualifications in the direction of the employer without interruption from work.
In addition, pregnant employees, women with children under three years of age, single mothers raising a child under 14 years of age/a disabled child under 18 years of age cannot be dismissed due to staff reduction.
Step 3. Notify the employee of the layoff
The employee must be notified personally and against signature at least two months before the dismissal (). There are several exceptions to this rule - for example, an employee who has entered into an employment contract for a period of up to two months must be notified of dismissal at least three calendar days in advance, and a person employed in seasonal work must be notified at least seven calendar days in advance (,). Also, an employment contract can be terminated before the expiration of the notice of dismissal period - with the written consent of the employee ().
If the employee refuses to mark receipt of the notice, it is necessary to draw up a corresponding act in the presence of at least two witnesses - this document will confirm that the employee has been notified of dismissal.
Step 4. Offer vacant positions to the employee
An employee who is being laid off must be offered available vacant positions from the employer to which he can be transferred (). They can be listed both in the notice of reduction and in a separate document.
It is necessary to notify the employee about vacancies repeatedly - the HR department is obliged to offer every suitable vacant position that appears in the company until the last day of work.
At the same time, the vacancy does not necessarily have to include work that corresponds to the employee’s qualifications; it is also possible to offer a vacant lower-level position or lower-paid job (). Moreover, the employer has the right to offer the dismissed employee to temporarily take the position of an employee on parental leave ().
If he agrees to one of the proposed vacancies, he is transferred to another position (,). In this case, dismissal will not occur.
Step 5. Notify the trade union and employment service about the upcoming layoff
In writing, no later than two months before dismissal, the employer must inform the trade union, as well as the employment service, about the reduction in the number or staff of employees (clause 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 ""). If the decision to downsize could lead to mass layoffs, this must be done no later than three months in advance.
The notification sent to the trade union indicates the full names of the workers subject to layoffs, as well as the names of their professions, positions or specialties.
When contacting the employment service, you should indicate the position, profession, specialty and qualification requirements for each of the laid-off workers and the terms of payment for their labor.
Each notice must be accompanied by:
- a copy of the order to reduce the number (staff) of the organization’s employees;
- draft order on the dismissal of employees of the organization;
- draft organization staffing table.
Step 6. Issue a dismissal order (Form No. T-8 or T-8a)
If the employee does not agree to any of the proposed vacancies, on the last day of his work the HR department issues an order to terminate the employment contract (or). The wording of the reason for dismissal may be as follows: “Reduction in the number (staff) of the organization’s employees.”
The employee must be familiarized with this order against signature on the day of dismissal ().
Step 7. Issue a certificate of the amount of earnings for the two calendar years preceding the dismissal
By the employee’s last day of work, the accounting department must issue a certificate of the amount of his earnings for the two calendar years preceding the dismissal. The corresponding one has been approved.
Step 8. Draw up a document containing information that was sent to the Pension Fund for the period of the employee’s work
On the last day of work, the accounting department will also issue the employee a document that contains information sent to the Pension Fund for the period of the employee’s work (clause 2-2.3 of Article 11 of the Federal Law of April 1, 1996 No. 27-FZ "").
There are no special forms for transmitting such information to the employee, so you should focus on the forms approved by the Pension Fund of Russia for submitting the relevant information to the department. For example, form SZV-M (), section 6 of form RSV-1 PFR (), etc.
Step 9. Make an entry in your personal card (Form No. T-2)
Before dismissing an employee, a corresponding entry is made by the HR department in his personal card ().
In the “Grounds for termination of the employment contract (dismissal)” you need to indicate the reason for the dismissal: “Reduction in the number (staff) of the organization’s employees.”
In the line “Date of dismissal” – indicate the last day of work.
Then you should enter the details of the order to terminate the employment contract - its date and number.
After this, the employee and the HR department employee certify the information about the dismissal with their signatures.
Step 10. Draw up a settlement note on the termination of the employment agreement (contract) with the employee (Form No. T-61)
On the last day of work, the HR department, together with the accounting department, fill out a settlement note regarding the termination of the employment contract with the employee (). On the front side, the HR department employee indicates general information about the employee, as well as information about dismissal and the fact of termination of the employment contract. And on the reverse side, the accountant calculates the amount of payment due to the employee.
The employer is not obliged to familiarize the employee with the calculation note.
Step 11. Make a settlement with the employee
On the last day of work, the accountant must give the employee wages for the time worked, compensation for unused vacation, if he is entitled to it, and make other payments (,). The employee must also be paid severance pay in the amount of average monthly earnings (). In addition, the employee retains his average monthly salary for the period of employment, but not more than two months from the date of dismissal. And if an employee resigns from an organization located in one of the regions of the Far North - no more than three months ().
If the employment contract is terminated by agreement with the employee before the expiration of the notice period for dismissal, he is paid additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the specified period ().
In the event that the employee did not work on the day of dismissal, the corresponding amounts must be paid to him no later than the next day after he submits a request for payment.
Step 12. Make an entry in the work book and issue it
The work book is also issued to the employee on the last day of his work ().
Step 13. Prepare and issue to the employee, at his request, certified copies of other work-related documents
Upon a written application from the employee, the employer is obliged to provide him with duly certified copies of documents related to work (). For example, copies of an order for employment, orders for transfers to another job, extracts from the work book, salary certificates - income certificates for individuals person and a certificate of average earnings for the last three months, which is necessary to receive, etc. ().
Ekaterina Dobrikova
,
portal expert editor
Documents
If necessary, the employer may decide to reduce the number or staffing levels. To avoid litigation with dismissed employees, a certain redundancy procedure must be followed.
Maria Blagovolina,
senior associate at Allen & Overy
Certain categories of workers who are subject to social protection and who cannot be laid off: pregnant women; women with children under three years of age; single mothers raising a child under 14 years of age (a disabled child under 18 years of age) (Article 261 of the Labor Code of the Russian Federation). It is also impossible to lay off an employee during the period of his incapacity for work or vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation)
Can temporary vacancies be offered?
A vacancy is a position provided for in the company’s staffing table; no employment contract has been concluded for the performance of work for it. That is, a position is not considered vacant if it is actually occupied by an employee, but he is on maternity leave, child care leave or temporarily transferred to another position. This is due to the fact that during this period the employee retains his workplace (position in the staffing table).
Thus, if you follow the logic, the employer is obliged to offer so-called permanent vacancies. However, there is no direct prohibition in law from offering temporary vacancies to employees who have been laid off. That is, the employer can offer employees temporary vacancies, but they need to conclude a fixed-term employment contract - for the duration of the absence of the previous employee. It should be noted that the court practice on this issue is not clear (rulings of the Moscow City Court dated July 1, 2010 No. 33-19668, St. Petersburg City Court dated August 30, 2010 No. 33-11908).
Dismissal before the expiration of two months
If an employee who has been laid off agrees to early dismissal, the employment contract with him can be terminated before the expiration of the two-month period. Such an employee must be paid additional compensation, the amount of which depends on the time remaining before the expiration of the two-month notice period (Part 3 of Article 180 of the Labor Code of the Russian Federation).
In this case, the employee can resign not due to layoff, but at his own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employer is not obliged to pay the employee compensation related to dismissal due to reduction (Article 178 of the Labor Code of the Russian Federation).
Footnotes:
1 tbsp. 81 Labor Code of the Russian Federation
2 tbsp. 179 Labor Code of the Russian Federation
3 tbsp. 179, 180 Labor Code of the Russian Federation
4 tbsp. 394 Labor Code of the Russian Federation
5 tbsp. 180 Labor Code of the Russian Federation
6 hours 3 tbsp. 80, part 1 art. 180 Labor Code of the Russian Federation
7 paragraph 2 art. 25 of the Federal Law of April 19, 1991 No. 1032-1
8 tbsp. 178 Labor Code of the Russian Federation
9 approved fast. Goskomstat of Russia dated January 5, 2004 No. 1
One of the grounds for termination of an employment contract at the initiative of the employer is a reduction in the number or staff of the company's employees 1. Before downsizing, the HR department and company management need to decide in advance whether there will be a reduction in staff or just numbers.
Downsizing is a reduction in the number of staff for a specific position. For example, instead of seven analysts, four remain on staff. Staff reduction is the complete elimination of certain positions from the staffing table. For example, the position of an analyst is completely excluded from the staffing table.
Which option should the employer choose?
Despite the fact that the Labor Code provides for the same amount of guarantees and compensation for employees subject to dismissal due to a reduction in numbers and staff, in practice the situation looks different.
In the event of a reduction in the number of employees, the question inevitably arises about the preferential right to remain at work 2 . The employer needs to choose from several employees with the same positions those who will have to be fired, and this choice must be justified. Of course, the Labor Code clearly states that the preferential right to remain at work (in the event of a reduction in both numbers and staff) is given to employees with higher labor productivity and qualifications. However, most practitioners are inclined to believe that in the event of staff reduction, the preemptive right does not apply. After all, all employees with a chosen full-time position are being laid off, that is, the employer does not have to choose which employees to keep and which to fire.
Judicial practice also proceeds from the fact that when staffing is reduced, the right of pre-emption is not taken into account when offering vacant positions. In this regard, from the point of view of the risks of litigation with dismissed employees, a more reliable option is the staff reduction procedure.
We follow the dismissal procedure
When laying off employees, it is important to correctly carry out all procedures and complete documents 3. Violation of the established procedure may lead to the fact that the dismissed person will have to be reinstated and paid for his forced absence 4 . The court can reinstate an employee dismissed due to redundancy, even if the employer made errors of a purely technical nature when preparing documents. The procedure for reducing the number or staff of employees consists of several stages.
Reduction order
First of all, the head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced. The new staffing table (with the changes that resulted from the reduction) must be approved by the same or a separate order.
In 2011, Aktiv LLC rented a building for an office in which it carried out its activities. In 2012, management decided to reduce rental costs due to the unstable financial situation of the company. Since February 2012, Aktiv LLC has been renting half of the building, and therefore the manager decided to reduce the number of cleaners (from two to one).
An order was issued to reduce the number (see below).
ORDER No. 2
about reducing the number of employees
Due to a decrease in the total area of rented premises for the office of Aktiv LLC
I ORDER:
1. To exclude from May 2, 2012 from the staffing table of Aktiv LLC the following position:
2. Head of the HR Department A.L. Kalashnikova in the manner established by current labor legislation: notify employee Mayevskaya O.G. about the upcoming dismissal due to workforce reduction; inform the employment service authorities about the upcoming dismissal of the employee; prepare a list of vacant positions for proposals from the dismissed employee.
3. Approve the staffing schedule No. 05-ShR dated March 1, 2012 and put it into effect from May 2, 2012.
I have read the order:
Head of HR Department Kalashnikova A.L. Kalashnikov
Notification to employees
About the upcoming dismissal due to a reduction in the number or staff of employees, it is necessary to warn in advance - personally and against signature at least two months before the dismissal 5. If an employee refuses to mark the receipt of the notice, it is necessary to draw up a report in front of witnesses (at least two people), which will confirm the fact of notice of dismissal.
The head of Aktiv LLC decided to eliminate the position of “web application developer” in order to reduce labor costs in the company. Startsev I.P. will be dismissed due to staff reduction on 05/02/2012. The personnel service hands him a notice against signature (see below), which Startsev I.P. must sign, 03/01/2012 (at least two months before the date of dismissal). At the same time, Aktiv LLC has a vacancy for a web designer, and it was offered to I.P. Startsev.
Notification
about the upcoming dismissal due to a reduction in the organization’s workforce
Dear Ivan Petrovich! In connection with the implementation of measures to reduce the number of employees, your position of “web application developer” will be reduced from May 2, 2012.
According to Part 1 of Article 180 of the Labor Code of the Russian Federation, you are offered the following job (vacant position) at Aktiv LLC, corresponding to your qualifications: web designer.
In accordance with Part 1 of Article 178 of the Labor Code of the Russian Federation, you will be paid severance pay in the amount of your average monthly earnings, and you will also retain your average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
Reason: order No. 12 dated March 1, 2012.
Director Olkhin I.D. Olkhin
I have read the notification
Startsev I.P. Startsev 03/01/2012
Job offer
Employees must be offered the vacant positions available to the employer at that time to which they can be transferred 6 . This must be done not once along with the notice of dismissal, but several times. Employees subject to redundancy must be offered every vacancy that appears in the company during the notice period. Based on the practice and position of the courts, we recommend informing employees subject to layoffs about vacancies three times: along with the notice, a month after reading the notice, and on the day before the last working day.
Please note that it is necessary to offer not only a vacant position or a job that matches the employee’s qualifications, but also a vacant lower-level position or lower-paid job. In this case, the employer is obliged to offer the employee all vacancies that meet these requirements that he has in the given area. An employer is obliged to offer vacancies in other localities only if this is directly provided for in a collective or labor agreement.
If an employer is reducing its workforce or workforce, it should not advertise for candidates specifically for such positions. We also recommend that you do not add the position back to the staffing table for at least six months after completion of the reduction procedure. Otherwise, employees have a chance to successfully challenge the dismissal and be reinstated by proving that there was no actual reduction in numbers or staff.
Employment service notification
The employer is obliged to report a reduction in numbers or staff to the employment service 7 . This must be done in writing no later than two months before the dismissal of employees. If the decision to reduce the number or staff of employees may lead to mass layoffs - no later than three months before the start of the relevant activities. The application to the employment service authorities indicates the position, profession, specialty and qualification requirements for them, as well as the terms of remuneration for each specific employee. The criteria for mass dismissal are determined in sectoral and (or) territorial agreements.
At the final stage of the downsizing procedure, compensation must be paid to dismissed employees who did not accept the vacancies and will not continue to work in the company in other positions. Employees must be paid severance pay in the amount of their average monthly earnings and retain their average earnings for the period while the dismissed person is looking for a job (but no longer than two months from the date of dismissal) 8 . You also need to issue orders to terminate employment contracts in Form No. T-8 9 and make entries in the work books of dismissed employees. The entry will look like this: “Dismissed due to a reduction in the number (staff) of the organization’s employees, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.”
Preparing documents for the court
Staff reductions must actually take place. This fact is confirmed by the presentation to the court of the staffing table before the reduction procedure and after its completion (after the reduction, the new staffing schedule approved by the order must be in effect). Judicial practice proceeds from the fact that the right to determine the number and staff of employees belongs to the employer. Although the employer is not required to prove the validity of the decision to reduce staff, it is recommended to prepare a feasibility study. The presence of such a document will strengthen the employer’s position in court and refute the employee’s arguments that the layoff was far-fetched. Often, employees bring printed notices to court stating that during a period of staff reduction, the company was looking for employees to fill the positions being reduced. Such evidence may indirectly confirm the unreasonableness of the reduction procedure, so I recommend refraining from publishing vacancies for the positions being reduced before the employee is dismissed and in the next 2-3 months.
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