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Who can not be fired for staff reduction: RF TC

Loss of work is the biggest problem,which can be caused by the financial and economic crisis. To exit from a difficult financial situation, organizations resort to optimizing the production process. In the framework of optimization, the number of employees is often reduced. Who can not be dismissed for reduction? What rights does a shortened employee have? What responsibility is the management of the organization?

What is the staff reduction?

Reducing the staff of the staff is a procedureabolition of posts (one or several), conducted in accordance with labor legislation. One of the methods to reduce the number of staff units is the liquidation of vacant seats. The staffing table is the main evidence supporting the reduction in the number of employees. If there is no staffing in the organization, then a payroll or list of employees can also act as a confirming document.

who can not be dismissed for staff reduction

Legal staff reduction

Russian labor legislationregulates the order and determines the grounds for the reduction of employees. So, the employer can dismiss employees due to a decrease in the number of staff units, reorganization or liquidation of the enterprise. In this case, the employer determines the optimal number of employees of the organization. Under the law, the employer is not obliged to justify the decision to dismiss the reduction officer, but formally the procedure should be carried out on the basis of the LC of the RF (Articles 82, 179, 180, 373). To dismiss an employee of an organization due to the reduction in the number of employees is possible only when the position he takes up is liquidated.

Illegal staff reduction

In practice, there is often an unlawful(imaginary) staff reduction, which has no real reason. This procedure is illegal. Employers resort to this method when they need to fire an employee, but there are no real grounds for this. If the procedure for termination of contracts is incorrect or if it is not followed, the reduction is also considered illegal. Rights dismissed in this case can be defended in court. However, in practice it is quite difficult to convict of the unlawfulness of the actions of employers.

payments for redundant staff

How to dismiss the reduction

This procedure consists of several stages.

  1. Launching the procedure for reducing the number of employeesmust be formally confirmed by the appropriate order and approval of the new staffing table. At the same time, the new schedule is approved before the procedure itself is launched. Those who are dismissed will be those whose position has not been preserved in the new staffing table.
  2. Article 81 of the Labor Code regulates the next stageprocedures. At least 2 months before the planned date of termination of employment contracts with employees, the employer must without fail send a corresponding notice in writing to the trade union organization.
  3. At least 2 months before the dismissal of employeesdue to the reduction of staff, the employer is obliged to warn the local employment service in writing. The notice must include the position, specialty, profession and qualification of each individual employee. The employment service should be informed of the planned reduction in the organization's staff at least 3 months if the procedure can provoke mass layoffs.
  4. 2 months before the scheduled date, the employermust inform his staff about the reduction under the signature. When an employee refuses to sign a warning, the personnel department draws up an appropriate act.
  5. The employer must offer employeesalternative - vacant positions in one's own or other companies. If in the period of warning in the organization there are vacancies, the employer should first of all offer them to employees who fell under the reduction. If in a two-month period, vacancies appear in the organization, the manager notifies the staff being reduced, and in no case accepts new ones. When selecting vacancies, the qualification and health status of the employee must be taken into account. With his consent, the transfer procedure is started. In the first place, similar jobs are offered. The management of the enterprise has the right to dismiss the employee and without warning on the preliminary agreement of the parties, which is made in writing. In this case, the injured party is paid additional monetary compensation, the amount of which is not limited by legislation and depends only on the arrangement on the spot.
  6. The company's management issues an orderdismissal of employees, which indicates the date and reason for the termination of the employment contract. Workers get acquainted with him under the painting. If the employee refuses to sign the order, an appropriate act is drawn up.
  7. Dismissed employees on the last working daycalculate, issue a work record with the corresponding entry. With the dismissal of employees who are members of a trade union, the motivated opinion of this organization should be taken into account (Article 81 of the RF Labor Code, as well as 82 and 373). The dismissal of persons not older than 18 is allowed with the consent of the State Labor Inspectorate and the Commission for the Protection of the Rights of Minors.

fired to reduce what to do

Who can not be dismissed

In the Russian labor legislation there is a list of those employees who can not be dismissed for staff reduction. Who can not be fired?

  • Women with children under 3 years old.
  • Women who are on parental leave (TC RF, 256 articles).
  • Single mothers with children under 14 years of age (if the disabled child is under 18).
  • Persons bringing up children under the age of 14 without a mother (if the disabled child is under 18, Article 261 of the Labor Code of the Russian Federation).
  • Employees of organizations on leave or on sick leave.
  • Minors without the consent of the State Inspectorate for Labor.

Also, according to the Labor Code of the Russian Federation (256 articles), nursing leavethe child can be provided until he reaches the age of 3 at the request of the mother. The workplace and position in this case are reserved for the woman.

Can a pregnant woman be dismissed on the basis of a reduction? Such dismissal is considered illegal. As stated in Article 261 of the LC RF, dismissal is only permissible when the organization is liquidated.

The only exception is cases where the reduction takes place within the liquidation of the enterprise.

reduction in the number of employees

Who has the advantages?

In addition to the list of those who can not be fired forreduction of staff, in the Labor Code, there is also such a thing as "preferential right". According to article 179 of the TC, this right gives employees of organizations the advantage of preserving the workplace with a reduction in staff, depending on the quality of their work duties or social reasons. These workers are dismissed last.

The pre-emptive right is enjoyed by workers withhigh level of skills and productivity. Work experience and education are also taken into account. The qualification must be supported by the documents on the completion of educational institutions, certificates on raising the level of qualifications, extracts from the protocols of commissions on the assignment of a category or category, etc. To assess the level of qualifications of employees, enterprise management can conduct attestation, including unplanned. However, the procedure for conducting such assessments should be reflected in the internal documents of the organization. If all employees have equal qualifications and labor productivity, the head takes a decision on dismissal together with the trade union organization.

The pre-emptive right to preserve the workplace is also enjoyed by the employees:

  • Containing two or more dependents (family circumstances).
  • Who independently maintain their family (there is no other source of income, except for the salary of this employee).
  • Maimed or occupational diseases in the period of performance of labor obligations from the employer who conducts the reduction.
  • Disabled war.
  • Raising qualifications without disruption from the labor process in the direction of management.

The collective agreement may also establish other categories of employees who have the pre-emptive right to preserve the workplace.

right of dismissal for reduction

Features of the dismissal to reduce retirees

Often Russian organizations workpersons who have reached the retirement age. However, age is not the reason for the first reduction. Article 179 of the TC states that age can be an advantage of the employee, since it can be an indicator of high skill and productivity.

In Article 178 of the Labor Code,that pensioners should be provided with all guarantees and payments in case of dismissal for reduction. Other interpretations of these legislative provisions contradict the principles of equality of workers' rights and the absence of discrimination in the world of work.

Payments of those who have been dismissed for redundancy

According to article 140 of the Labor Code of the Russian Federation,termination of employment relations with the employee management of the organization must make a calculation with him and pay all the money. Payments must be made after the employee submits a corresponding claim no later than the next day.

If an employee is dismissed for staff reduction, henecessarily receives severance pay, the amount of which is equal to the average earnings per month. Within two months the employee is paid severance pay for the time of finding a suitable job. This payment may be made for the third month if the dismissed employee applies to the employment service within 14 days after the termination of the employment contract and does not find suitable work.

whether it is possible to discharge a pregnant woman

Additional compensation is paidWorkers who have been reduced without warning and in consultation with the employer. The amount of payment is determined by the amount of the average monthly earnings calculated in proportion to the time that remained before the expiry of the warning period for the reduction. Pensioners, as already mentioned above, are paid all compensation, as well as ordinary workers. The head, his deputies, the chief accountant are paid compensation in the amount of not less than three average monthly salaries.

In addition, employees who are dismissed due to the reduction in the number of staff, are paid for the days worked in the current month and compensation for unused vacation days.

The amount of severance pay may bechallenged. In this situation, the organization pays the unpaid portion of the amount to the employee. The remaining part is paid on the basis of an agreement between the employee and management or by a court decision.

Alternative

Alternative to the dismissal of workers to reduceis the termination of employment relations by agreement of the parties. This is primarily beneficial for the employer, since he is exempt from payment of additional compensation and severance pay, minimizes the likelihood of appealing the procedure in court, there is no need to alert the trade union, the employment service. In addition, the list of those who can not be dismissed for staff reduction, this procedure does not apply.

Often, employers force their employees to leave their own volition. Thus, the employee is also deprived of severance pay and compensation, which he relies upon in reduction.

how to dismiss by reduction

Liability of the employer

Employers are liable for violationrules of the procedure for the dismissal of staff with a reduction in the number of staff. In case of violation of the terms of payments, according to Article 236 of the Labor Law, the employer is obliged to compensate, in addition to all the money due to the employee, the interest that makes up at least one three hundredth refinancing rate of the Central Bank of Russia for each day of delay. The same sanctions apply to employers with a delay in payment of wages. If the employer does not fulfill the obligation to provide vacant positions to the dismissed employees, this threatens him with payment of a fine of 5-50 times the minimum wage according to Article 5.27 of the Administrative Code.

What to do with a reduction

If you were fired for a reduction, what should you do?You can apply to several instances. To begin with, you can send a written application to the trade union organization of the enterprise. The trade union must respond to the complaint within a week. Incident with wrongful dismissal on reduction can be considered by Federal inspection of work and Office of Public Prosecutor. If the trade union organization and the labor inspectorate did not reveal any violation of the procedure, a lawsuit may be filed. This can be done in the 90-day period from the moment the employee learned about the violation of his labor rights. If the dismissed employee has decided to challenge the termination of the employment contract, the claim must be filed within 30 days of the issuance of the work record or a copy of the relevant order. Employees who have been dismissed illegally do not pay duties and other legal expenses. When recognizing a dismissal to reduce the wrongful employee is restored to his former workplace by the body that was authorized to consider the labor dispute. Employee in this case, compensate for the average salary for the time of forced absenteeism or the difference for the period of performance of low-paid work, as well as moral damage.

Dismissal due to the decrease in the numberemployees in the organization can touch everyone. Therefore it is so important to know the list of those who can not be dismissed from the staff reduction and who has the pre-emptive right to preserve the workplace. These issues are fully regulated by Russian labor legislation. The employer's decision on dismissal for reduction may be challenged both in court and at the appeal to the trade union, the prosecutor's office, the Federal Labor Inspectorate. Russian labor law regulates the rights of a staff member who has been dismissed from the state. In the event of difficulties, you should seek the help of a competent lawyer.

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