Article 179 of the Labor Code of the Russian Federation. Preferential right to remain at work in the event of a reduction in the number or staff of employees

Main stages

The reduction process has a number of main stages. The launch of the process itself must be confirmed by an appropriate order and the establishment of a staffing table. The schedule must be approved before starting the procedure itself. Those employees who do not have a position retained in the updated schedule are fired. Article 80 of the Labor Code specifies the further stages of this process:

1. Two months before the date of termination of the agreement with employees, the employer must send a written notice to the trade union organization.
2. Two months before the layoff, the employer must notify the local employment center in writing. The notice must indicate the specialty, position held, qualifications and profession of a particular employee. The employment center must be notified of the reduction at least three months in advance if this process is accompanied by large-scale layoffs.
3. Two months before the due date, the employer is obliged to notify his employees of the upcoming dismissal against signature. If a person refuses to sign the notice, then the personnel department staff draws up a document that confirms this.
4. The employer must offer employees an alternative - vacant positions in the same or another organization. If, during the warning, vacancies appear at the enterprise, then management is obliged to provide them to employees who have been laid off. If positions appear at the enterprise within a 2-month period, the employer notifies employees about this and does not have the right to hire new ones. When choosing vacancies, you need to take into account the health status and profession of the employee. If he agrees to the new position, the transfer process is carried out.
5. The head of the organization can dismiss an employee without warning, by agreement of both parties, drawn up in writing. In this case, the former employee is additionally paid compensation, and its amount is not limited by law and will depend only on the agreement. The head of the organization signs a reduction order, which indicates the date and reasons for terminating the agreement.
6. Retrenched workers must be fully paid off on the last day, and also issued with a work certificate. When dismissing citizens who are members of a trade union, the company's reasoned justification must be taken into account. Dismissal of persons under 18 years of age is possible with the consent of the state labor inspectorate.

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The procedure for processing documents and payments for staff reduction according to the Labor Code of the Russian Federation

The Labor Code of the Russian Federation specifies several situations leading to termination of the labor relationship between the employee and the employer. The dismissal of an employee due to staff reduction is provided for in clause 2 of Art. 81 Labor Code of the Russian Federation. How to correctly carry out the reduction procedure so as not to subsequently become a participant in the lawsuit as a defendant?

In order for the termination of an employment contract for the specified reason to be legal, the organization’s management should take the following steps:

Question for an expert regarding dependents

What should a manager do if all employees who are at risk of dismissal have dependents? One of them has two minor children, the second has sick parents of retirement age.

“Since such a priority is not established by law, the employer is given the right to independently determine which of them to give preference to. He needs to look again at the Collective Agreement so that the decision is as objective as possible. Perhaps the document provides for additional indirect selection criteria, for example, the availability of incentives for achievements at work.”

Head of HR Service V. M. Kravchenko

To ensure that an employee dismissed due to staff reduction does not have grounds to go to court regarding the illegality of the employer’s actions, the latter must carefully study the laws regarding preemptive rights and document his decision.
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Is it possible to fire an employee if he was not notified of the layoff?

Every citizen must be notified in advance. The citizen must be warned strictly against signature and in person. This must be done no less than two months before the upcoming dismissal. The issue of terminating the employment of seasonal employees is somewhat different. The warning period is much shorter and is only seven days. Persons who have signed an employment agreement for a period of two months or less must be properly notified at least three days in advance according to the calendar.

The notification document is drawn up and executed in simple written form, and the employee is required to put a personal signature under the paper. If you refuse to sign, you will need to invite two witnesses and record this fact. If all of the above rules are not followed, the employee may apply to the court to demand that his dismissal be declared illegal.

Nuances

As follows from the provisions of Art. 179 of the Labor Code of the Russian Federation, skill level and high productivity are considered unconditional criteria in comparison with other factors.

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Meanwhile, it must be taken into account that the rules of some other norms of the Code correct the mandatory nature of the above article.

First of all, the Labor Code establishes a number of circumstances, the presence of which makes termination of a contract with an employee at the initiative of the employer impossible. Thus, the release of an absent employee due to being on vacation or sick leave is not allowed. An exception is provided only for cases of liquidation of an enterprise and termination of the activities of an individual entrepreneur.

It is prohibited to terminate a contract with pregnant women, single mothers, employees who are dependent on minors (under 3 years old), employees raising children under 14 years of age or disabled children under 18 years of age, and other persons raising a child without a mother.

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Secondly, termination of legal relations with certain categories of employees is permitted only with the consent of the competent structure. For example, termination of a contract with a minor employee is carried out with the consent of the state labor inspectorate and the KDN (commission for minors).

Thirdly, the dismissal of heads/deputies of elected collegial structures of primary trade union organizations, as well as trade union organizations of structural divisions of an enterprise (equated to shop floors or not lower than them), who are not exempt from work, is permitted only with the consent of a higher trade union organization.

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From the above it follows that the guarantees provided for a number of categories of employees or valid under certain conditions exclude the application of the rules enshrined in Art. 179 Labor Code of the Russian Federation.

Important point

Article 180 of the Labor Code of the Russian Federation obliges the employer to offer a vacant position to a redundant employee. The notification indicates its name (if there are several of them, then all are listed). During the entire notice period (2 months), the employer is obliged to offer emerging vacancies.

The employee, in turn, can agree to a new position or refuse further work. Moreover, he may not sign the notice. In this case, however, the employer will draw up a report.

If the employee agrees to the new position, a transfer is formalized. If the employee refuses the vacancy, the contract is terminated in accordance with paragraph two of part 1 of article 81 of the Labor Code.

Severance pay in case of layoff

Art. 179 of the Labor Code of the Russian Federation establishes guarantees for a number of categories of workers. Are there guarantees for those employees to whom the provisions of the article do not apply? Of course there is.

The Labor Code establishes the employer’s obligation to pay employees dismissed due to the liquidation of the organization or downsizing a severance pay equal to the average monthly salary. In addition, the employee retains his average earnings while he is employed by another enterprise. However, this period should not exceed 2 months. In exceptional cases, the period may be increased by 1 month.

There is no need to provide documents to receive payments. It is enough to write a corresponding application.

Benefits are paid on the day of dismissal. If a citizen is absent from work for some reason, payment is made the next day.

The amount is calculated taking into account the rules of Article 139 of the Labor Code. To determine the amount of payment, you need to take the start and end dates of the period and calculate the number of days/hours to be paid. Based on the results obtained, the daily/hourly average is calculated. The calculation should be made for the 12 months preceding the period of dismissal.

Exact algorithm for dismissal due to staff reduction (Article 81, Part 1, Clause 2 of the Labor Code of the Russian Federation)

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which he can perform taking into account his state of health.

Who does it apply to?

Taking into account the fact that according to the law there are clear regulations for the procedure, the employer does not have complete independence in determining the circle of persons subject to reduction.

There are categories that have benefits:

Such employees may be dismissed in the following cases:

1. Complete liquidation of the enterprise.
2. By mutual agreement of the parties.

The law defines categories that, although they can be dismissed, have an advantage over others:

• constantly ensuring high labor productivity;
• having two or more dependent people;
• disabled people of the Great Patriotic War and those equivalent to them;
• Heroes of the USSR and Russia;
• liquidators of the Chernobyl accident;
• persons who received disability due to injuries received during production activities;
• received an occupational disease at this production;
• attending advanced training courses at this time as directed by the employer.

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Step-by-step registration instructions

The dismissal procedure must be properly formalized:

1. Preparation of a redundancy document.
2. Determination of persons not subject to reduction by law.
3. Identification of persons with preferential rights.
4. Drawing up a summary table with employee characteristics.
5. Approval of new staff.
6. Creating an order to change the number of working personnel.