What if this staff reduction is fictitious?

Fictitious staff reduction judicial practice - Legal educational program

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to find out how to solve your particular problem, please use the online consultant form on the right or call ext. 738.

It's fast and free!

Unfortunately, everyone has already gotten used to the fact that as soon as the country’s economy enters a period of another crisis, it is necessary to prepare for the fact that employers will make another staff reduction.

Organizations see layoffs as the first way to save money.

At the same time, what is strange is that it is not the top management with exorbitant salaries that is being laid off, but the smallest positions, which already received a little more than the minimum wage.

Be that as it may, employers resort to layoffs extremely often, fortunately, the Labor Code of the Russian Federation establishes some guarantees for employees in the form of mandatory payments and timely notification in the event of layoffs.

In addition, there is a category of workers who cannot be laid off at all, such as pregnant women and single mothers.

However, the reduction may not always be due specifically to economic reasons. There are cases when, under the guise of layoffs, they simply want to get rid of an employee so that, for example, the position can be filled by one of the criminals.

Or the tyrant director developed some kind of personal hostility towards the employee and decided to lay him off, because it is not possible to kick him out of work in any other way.

When a reduction is not carried out to actually reduce the number of employees in the state, it is called a “fictitious reduction”.

Categories of employees not subject to dismissal due to reduction

The employer does not have the right to dismiss certain categories of employees due to staff reduction. According to Art. 261 of the Labor Code of the Russian Federation, these include:

Pregnant women. An employer cannot fire a pregnant woman on his own initiative, regardless of the reasons for the dismissal.
Women with children under three years of age.
Single mothers with young children or disabled minor children.

The employer has no right to lay off employees in this status.

Fictitious reduction of position or staff - judicial practice and liability

— Business organization — Personnel — Fictitious staff reduction

Termination of employment contracts with employees due to staff reduction is a fairly common event, however, conducting a fictitious procedure solely for the dismissal of specific employees may entail adverse consequences for the employer. From a legislative point of view, the issue of fictitious reduction of staff or position of an employee may be the basis for declaring the dismissal illegal, subsequent reinstatement of the employee in his position and payment of compensation to him. Judicial practice on fictitious staff reductions fully confirms this thesis - therefore, all parties to the labor relationship should be aware of their rights and obligations during the termination of the employment contract.

Reduction of women on maternity leave for up to 3 years

You also need to remember about Art. 256 of the Labor Code of the Russian Federation, which states that for women (fathers, grandmothers, grandfathers and other persons) who are on parental leave until the child reaches the age of 3 years, they retain their place of work for the duration of this leave ( job title).

Difficulties with this category of personnel often arise in state-owned companies. Personnel officers receive orders from above that it is necessary to exclude some positions and even structural units, and suddenly it turns out that it is in these structural units that people on parental leave work. What to do with them? They often follow orders and cut back. But if the employee goes to court, he will be reinstated at work.

Imaginary staff reduction judicial practice - Legal Directory

From a legislative point of view, the issue of fictitious reduction of staff or position of an employee may be the basis for declaring the dismissal illegal, subsequent reinstatement of the employee in his position and payment of compensation to him.

Judicial practice on fictitious staff reductions fully confirms this thesis - therefore, all parties to the labor relationship should be aware of their rights and obligations during the termination of the employment contract.

Current legislation quite strictly regulates issues related to the dismissal of employees due to layoffs.

At the same time, taking into account the wide possibilities of the employer to use this basis for terminating employment relationships with employees, this procedure requires special control from the state and supervisory authorities.

In particular, a fictitious staff reduction, if discovered, will clearly be considered a violation of current legislation and the rights of the employee.

Therefore, first of all, in the event of a reduction, the parties to the relationship should familiarize themselves with the following regulations in force on Russian territory:

Art. 77 Labor Code of the Russian Federation. The principles set out in this article regulate most of the existing possible grounds for carrying out the dismissal procedure, and among them there is also dismissal at the initiative of the employer - reduction of staff or positions is a type of such dismissal.
Art. 81 Labor Code of the Russian Federation. This article directly addresses issues relating to when and how an employer can dismiss employees on its own initiative. One of the reasons for this is a reduction in staff.
Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004. This regulatory document explains the application by courts of general practice of the provisions of the above-mentioned article. 81 of the Labor Code of the Russian Federation in matters of layoffs of employees and, in particular, indicates the employer’s obligation to prove the fact of a real reduction in the number of staff or positions.

It should be noted that before considering the issue of fictitious reduction of staff or position, it is necessary to understand that this procedure can also be divided into two different activities:

Staff reduction. In this case, changes are made to the enterprise's job schedule in relation to the number of employees employed in existing positions and those provided for by internal regulations or other local regulations, but the list of positions itself remains unchanged.
Reduction of positions. In such a situation, the employer changes the job description, which may include the abolition of certain positions or even entire structural divisions of the enterprise.

The employer is obliged to prove the fact of reduction of positions or staff numbers, but is not obliged to explain to the judiciary, the trade union, the employees themselves or other persons the reasons for the reduction of staff. He has the right to independently make decisions about the need for a reduction procedure and its goals.

As can be understood directly from the provisions of the Labor Code, the concept of fictitious staff reductions is not directly considered by it.

At the same time, judicial practice on fictitious reduction of staff, as well as the resolution of the Supreme Court of the Russian Federation, provides for the responsibility of employers for such a procedure, therefore, when carrying out a reduction, both the employer and the laid-off employees must take into account these features of the legal regulation of this procedure.

What does illegal dismissal mean?

Legislative documents do not contain the term “illegal dismissal,” nor do they use the word “dismissal” itself. It is usually understood as the termination of the employment relationship between two parties to the process - the employee and the employer. This termination may occur as a result of the termination of the employment contract or its interruption at the initiative of any party, and there may also be objective reasons beyond the control of either the employer or the employee.

Unlawful dismissal , in this case, will be considered such release from labor relations for which one or more of the following conditions is true:

there are no grounds for dismissal or they are insufficient;
The dismissal procedure was carried out in violation of the Labor Code.

NOTE! Deviations from the law are possible under any circumstances of termination of an employment relationship: you should always pay attention to the legislative norms and the procedure for registering dismissal.

Fictitious staff reduction

Where to go if you were illegally fired

From the moment the employee ceases to be such and he has reason to believe that it is illegal, he has three months to try to restore his rights. And conflicts related to the illegality of dismissal, if they arise, must be considered within a month (p. 392 of the Labor Code of the Russian Federation). To do this, the offended employee has the right to appeal to one of three bodies, each of which has its own competence and powers:

Federal Labor Inspectorate;
prosecutor's office;
court.

How can the labor inspectorate help?

If an employee has filed an application for illegal dismissal with the labor inspectorate, the labor law inspector will be required to check the circumstances outlined in it within 1 month. And the result of the inspection will have certain consequences. What the inspector can do as a result of the inspection:

give the employer an order to eliminate violations of the Labor Code, and, as a result, the violated rights of the employee;
bring the employer to administrative liability.

REFERENCE! The requirements may well include a mandatory requirement for the reinstatement of an unfairly dismissed employee.

The employer may appeal the received order or the assigned liability within three months.

ADVICE FOR EMPLOYEES. The labor inspectorate pays attention primarily to procedural violations, therefore, if the grounds are controversial and require interviewing witnesses and comparing evidence, contacting the labor inspectorate may be ineffective.

When to go to the prosecutor's office

The prosecutor's office has the right to verify compliance with any legislation. As for labor law, its powers are almost similar to the labor inspectorate:

establishing the fact of violations,
issuing orders,
bringing to responsibility.

Unlike the labor inspectorate, prosecutors are also busy with other areas of legal violations, so minimal attention will be paid to ordinary violations of rights. If the prosecutor's audit is not scary for the employer, it may also not be entirely effective.

Court - independent protection of your rights

This is the only option that allows us to put a final point on the issue of the legality of dismissal: all other authorities can only initiate an appeal here. Therefore, the majority of those illegally dismissed, in order not to miss the established monthly deadline, immediately contact this authority.

The claim must be brought to the district court regarding the location of the employer. The claimant, as the weaker party, is exempt from state fees and other legal expenses.

It is more effective to seek representation of your interests from a professional lawyer.

The court has the right not only to reinstate the illegally dismissed person, but also to oblige the employer to pay all the money for forced absences, and sometimes compensation. In addition, bailiffs will ensure that this decision is compulsory.