Under what article should they be fired? (staffing table has changed)

Reducing the number of employees

The staffing table is not a document that is adopted by an organization once and does not change until the end of its activities. Since this local regulatory act must characterize the current personnel structure, it is revised when expanding the business, changing production or sales technology, or during financial difficulties.

The need to eliminate one or more positions, and sometimes entire departments, may be dictated by:

diversification of activities;
crisis phenomena;
changes in sales markets;
updating the technological component;
updating this local regulatory act;
other reasons.

The procedure for reducing a position in the staffing table depends on whether this document will be brought into line with the actual personnel structure, or whether the exclusion of one of the positions will lead to the actual dismissal of one or more employees.

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Dismissal of employees due to changes in staff numbers

When can I make changes to my schedule? Let's look at the most common reasons why this need may arise:

reorganization of the company, accompanied by optimization of its structure and an increase or decrease in existing positions (you can find out how to correctly change the staffing table in connection with optimizing the organization’s work here);
a decline in production volumes, entailing the need to reduce the number of employees on staff;
expansion of the company, requiring recruitment of labor and the emergence of new staff positions;
change in the amount of money allocated to pay salaries;
making changes to job titles.

The list is far from exhaustive, but it is the situations described that most often force employers to adjust staffing levels.

Reasons

Reduction of a position in the staffing table with the dismissal of employees: procedure

The release of employees and the simultaneous exclusion of jobs from the staff structure is associated with additional financial and time costs for the company. In addition to the increased amount of payments, in the event of a revision of the personnel structure, it is necessary to promptly notify employees who fall under this procedure, and in the event of a large-scale curtailment of activities, inform the trade union committee and the department responsible for employment.

When reducing staff, there is a direct legal ban on the dismissal of some employees due to their social status.

For example, you cannot lay off a pregnant employee or a single parent.

Failure to comply with their rights will result in a fine and, in some cases, criminal liability for the employer.

As a rule, layoffs are associated with an unfavorable financial situation in the company. At the same time, before making a decision to dismiss employees, several steps can be taken to reduce the total amount of payments when releasing staff:

offer a transition to vacant positions in the company (even with a change in job profile);
consider the possibility of dismissing employees at the end of a fixed-term employment agreement or in connection with reaching retirement age;
exclude vacant jobs from the staffing table, without dismissing real workers;
offer temporary reductions in base salaries or additional benefits;
transfer employees to part-time mode.

If the exclusion of units from the schedule is associated with the dismissal of the employee occupying it, it is necessary to comply with the notification deadlines for the employee (Article 180 of the Labor Code of the Russian Federation).

After considering all options for reducing the wage fund and making a decision to cut jobs, it is necessary to draw up and approve in advance a new local regulatory act on the personnel structure or make changes to it. This must be done no later than 2 months before excluding the workplace from this document.

An order to reduce jobs and eliminate staff positions can be drawn up as follows:

ODO "Tradecom"

Nizhnemartovsk

ORDER

No. 26/k dated 10/12/2018

About job reduction

Due to the deterioration of the company's financial position and the need to implement measures to reduce costs

I ORDER:

Exclude from the staffing table the position of “sales specialist” (2 sh.e.) in the sales and logistics department.
The head of the HR department must take all necessary measures to notify employees and formalize the dismissal procedure for staff reduction.
The chief accountant calculates and promptly pays all necessary compensation to dismissed employees.
Control over compliance with the established dismissal procedure and compliance with deadlines is entrusted to the Deputy Director for Human Resources Perevalov I.D.
The new version of the staffing table No. 4 dated 02/01/2018 comes into force on 01/01/2019.

Applications:

Action plan for the financial recovery of ODO "Tradecom"

Staffing schedule No. 4 dated 02/01/2018

Director Pustokhvalov A.V.

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.

Informing about job reduction

After management issues an order to exclude workplaces from the local regulatory act, employees who are subject to dismissal are familiarized with this document. Additionally, they must be given written notice of the upcoming termination of the employment relationship. In cases determined by law or collective agreements, it is necessary to notify the trade union committee and the employment service about the upcoming release of workers.

The redundant employee must receive notice no later than two months before the date of dismissal.

This document is drawn up in two copies, one of which is given to the employee, who personally certifies its receipt. This document can also offer job vacancies.

It is necessary to offer all possible employment options, regardless of salary.

At the same time, qualification requirements and health status are taken into account.

For example, an employee with a legal or economic education can be offered a job as a specialist in accounting, marketing services, a financial department, or a job that does not require special qualifications (loader, cleaner, auxiliary worker, etc.). But you should not offer engineer or technologist vacancies that require specialized education.

The same situation occurs with laid-off employees who have health problems. For example, you should not offer a physically demanding job to someone with musculoskeletal problems or a job in a processing department to an employee with a dust allergy.

In addition, the legislation does not restrict the employer from transferring a laid-off employee to vacancies with a salary level lower than what he received in the position excluded from the local regulatory act.

Listing of vacant positions and departments

Renaming, as a rule, does not entail a correction in the labor function of an employee (or an entire department). If the labor function changes, then renaming cannot be carried out. It is required to formalize the transfer of an employee (or several employees) to a new position. Changing the name will entail making adjustments and additions to the employment contract, the work book and the employee’s personal card.

Thus, such innovations not only require notification, but also consent from employees. In case of refusal, the employer should be guided by Art. 74 of the Labor Code of the Russian Federation, without missing the mandatory notification to the employee two months before the adjustments. You can use this sample order to change the staffing table.

This procedure does not require agreement with employees. These positions are not filled and therefore can be eliminated at the discretion of the employer.

Important point! If staff reduction is planned, then it is better to remove vacant positions from the ShR before the start of the reduction procedure, and not simultaneously with it.

What to do with laid-off employees

If you offer employees alternative positions, be prepared for the possibility that they will accept. In this case, draw up an additional transfer agreement and attach it to the employment contract, then issue the appropriate order. The transfer must be recorded in the employee’s work book and personal card. You can also transfer to a temporary position with a fixed-term employment contract, where the permanent employee is, for example, on vacation.

The transfer must be recorded in the employee’s work book and personal card.

If the employee does not agree to any of the options, issue a dismissal order, familiarize the employee with it, ask for a signature and pay the money. An employee who does not agree to take one of the proposed vacancies is entitled to compensation - average monthly earnings. You will need to pay the same amount to the employee every month while he is looking for a new place (up to two months, in the north - up to three). In the work book, write that he was fired due to staff reduction, refer to Art. 81 Labor Code of the Russian Federation.

Please note: some former employees like to meet their employers in court to challenge their layoffs. This is especially likely if you arranged for the abolition of a position only to fire a few unpleasant people. For an employee to be truly laid off, the canceled position should not be on the staffing table, and advertisements for the search for an employee should not be posted on information resources for another six months.

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.

Dismissal of employees due to changes in staff numbers

Reasons

Employees should be notified in writing of changes in the staffing table (and, moreover, their personal signatures should be required to confirm that they are familiar with the order). These cases are as follows:

Increase or reduction in wages (including various allowances).
Changes in job titles (transfer to another position or simply change its name).
Changes in the name of the structural unit specified in the employment agreement and in the work book.
Change of position (for example, with a promotion).
Carrying out reductions in staff.
Other changes in working conditions specified in the employment contract.

REFERENCE! It is not necessary to notify employees about the introduction of new positions or the abolition of vacant ones.

Blog

Question: The organization plans to reduce its workforce. When should the staffing table be approved: before notifying employees about staff reduction or after two months? How long after the reduction of positions and dismissal of employees can these positions be added back to the staffing table?

Answer:

The new staffing schedule must be approved before reduction activities begin. The period during which the employer does not have the right to reintroduce a previously reduced position into the staffing table is not established by law.

Rationale: Employees are warned by the employer personally and signed by the employer about 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 2 of Article 180 of the Labor Code of the Russian Federation). In this case, the new staffing table must be approved before the start of reduction measures.

It does not follow from the provisions of labor legislation how the moment of dismissal of laid-off workers and the moment of introducing a new staffing table should relate to each other. 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 the employees’ dismissal (see Appeal ruling of the Volgograd Regional Court dated 09/06/2012 N 33-7811/2012).

However, there is a position that the new staffing table may come into force the next day after the dismissal of the relevant employees (indirectly confirmed by the Appeal ruling of the Tula Regional Court dated November 7, 2013 in case No. 33-2675).

The period during which the employer does not have the right to reintroduce a previously reduced position into the staffing table is not established by law.

The employer, taking into account the specifics of the activities and needs of the organization, work technology, demand for manufactured products, plans for further development and other factors, independently determines the structure and number of employees of the organization. That is, if necessary, the employer has the right at any time to make changes to the staffing table, entailing both a decrease in the number of positions (specialties, professions) or staff units required by the employer, and an increase in them.

In paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is stated that, according to Art. 8, part 1 art. 34, parts 1 and 2 art. 35 of the Constitution of the Russian Federation and paragraph. 2 hours 1 tbsp. 22 of the Labor Code of the Russian Federation, for the purpose of effective economic activity and rational property management, the employer independently, under his own responsibility, makes the necessary personnel decisions: selects, places, and dismisses personnel. That is, if an employer once decides to reduce the number (staff), then later, when he needs additional labor, he can reintroduce positions (specialties, professions) or staffing units that were previously excluded from it into the staffing table. The legislation does not establish a limiting period, before the expiration of which the employer does not have the right to introduce a previously reduced position into the staffing table.

It should be borne in mind that dismissal due to a reduction in the number (staff) of employees cannot be used solely as a way to get rid of employees unwanted by the employer. Thus, the Determination of the Constitutional Court of the Russian Federation dated December 17, 2008 N 1087-О-О indicates that termination of an employment contract on the basis of clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation is recognized as legal provided that a reduction in the number or staff of employees actually took place (clause 2.3). The court also draws attention to the fact that it is impossible to completely exclude the possibility of abuse of rights on the part of an employer who uses a reduction in staff to fire a specific person. The validity of a reduction in the number or staff of employees is established, as a rule, by comparing the previous and new editions of the staffing table, but is not limited to this.

In the event of a dispute, the employer must prove that the change in the staffing table was caused by any objective economic, technical, organizational or other factors.

The introduction of an abolished position into the staffing table and the hiring of a new employee for this position a short period of time after the dismissal of the previous employee, in our opinion, may indicate that a reduction in the number or staff actually did not occur. In our opinion, even if the newly hired employee holds a different position, but performs a labor function similar to the labor function of the dismissed employee, termination of the employment contract under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation may be considered illegal. In this case, the period for an employee to go to court to appeal against dismissal is one month from the date of delivery of a copy of the dismissal order to him or from the date of issue of the work book (Part 1 of Article 392 of the Labor Code of the Russian Federation). Moreover, since a dismissed employee can learn about the reinstatement of the position he previously occupied in the staff list only after the expiration of the specified period, and since only the court establishes circumstances indicating a violation of the rights of this employee, which he did not know and could not know about at the time handing him a copy of the dismissal order or issuing a work book, the court, considering in accordance with Part 3 of Art. 392 of the Labor Code of the Russian Federation, the corresponding petition does not have the right to refuse to restore the missed procedural period without examining the factual circumstances of the case, which may serve as the basis for such restoration (clause 2.3 of the Determination of the Constitutional Court of the Russian Federation of December 17, 2008 N 1087-О-О).

Prepared based on material by O.A. Batasheva State Labor Inspectorate in the Rostov region. 01/17/2017

How to change a document?

The first step in the process of updating the T-3 form is a memo about the need to adjust the structure, expand the staff, etc.
Next, you need to decide whether the changes are significant and will require the approval of a new document, or whether it is enough to make changes to the form that records the structure and size of the organization. In accordance with the decision, an order is being prepared either “to approve the staffing table” or “to make changes.”
The order to approve the new T-3 form obliges to create a new document form with a number following the number of the current edition.

If a new version of T-3 is introduced in connection with a reduction in staff, it cannot contain vacant positions that could be offered to dismissed employees.

The new version of the staffing table can be updated after 2 months . The document can be approved once and be valid for many years. Or it can be created anew or adjusted countless times.

In modern conditions, when a document is created electronically, it is not difficult to create a new form and assign it the next sequential number. All forms, valid and expired, should be kept in a safe place.