Benefits of layoffs. Preemptive right in case of reduction. Pay severance pay
Reduction of staff is carried out by an enterprise or organization in the prescribed manner by reducing the number of employees. The fact of the reduction is confirmed by the publication of the Order on the new staffing table for the enterprise and making appropriate changes to it. The dismissal procedure is carried out only after the approval of the Order.
In order for the layoff to become legal, the management of the enterprise must comply with all the requirements of the Labor Code:
- Downsizing really needs to take place.
- The management of the enterprise personally (under the signature) in writing must warn each individual employee about the upcoming dismissal.
- The dismissal of an employee in connection with a reduction in staff must be carried out in accordance with the requirement of the law on categories of persons with preferential rights to remain at work.
- It is necessary, if possible, to transfer the employee to another position or job.
- Not later than three months before the dismissal of the employee, the local employment center should be warned.
- Get consent to the reduction of the trade union body.
- Make payments of compensation and severance pay.
By law, the new staff list must indicate the actual reduction of workers. You cannot hire a new employee for a reduced position.
All dismissed employees are warned personally (on receipt) about the upcoming dismissal at least two months before the start of the reduction procedure.
The warning time is documented. On the general Order on the reduction of staff (or on the issued separate order for the employee), there must be a personal signature of each dismissed employee.
The following categories of employees can take advantage of layoffs due to redundancy:
- Persons, except for whom there are no other members with independent income in the family.
- Employees who have received occupational diseases or industrial injury at their last place of work.
- Disabled combatants who were injured while performing their duty to defend the Fatherland.
- Employees who improve their skills on the job in the direction of the enterprise.
- Family, supporting two or more disabled family members.
Abbreviations are not allowed:
- Employees on vacation.
- Temporarily disabled employees on the basis of a certificate from a medical institution.
- Women whose children have not reached the age of three.
- Mothers who alone are raising a disabled child under the age of 18.
- Mothers who independently raise children under 14 years of age.
- An employee under the age of 18 is dismissed only in agreement with the relevant state authorities.
Information about the upcoming reduction must be provided to the trade union body and the state employment center no later than three months before the start of the reduction procedure.
Transfer to another place of work
The dismissal of an employee to reduce staff is possible when the enterprise does not have the opportunity to transfer him to another position or job. Labor law obliges the employer to offer the employee in writing a vacancy in the same enterprise that corresponds to his qualifications. If there is no such job, offer a less paid job or a lower position. If the employee refuses the existing offers, the contract is terminated with him. labor contract. Refusal of the proposed work must be accepted in writing and with the personal signature of the reduced employee.
Payment of severance pay upon reduction
An employee's retirement benefit is calculated in the amount of one average monthly salary. Also, for the period of employment, the employee retains his average monthly earnings for a period of up to two months from the day of reduction (including severance pay). If during this time the employee is not employed (in this case, the employment service issues a certificate, which is a supporting document), the average monthly salary is paid to the dismissed employee also for the third month after the reduction. This provision does not apply to an employee who applied to the state employment service after a two-week period after the reduction.
The employer may terminate the employment contract with the written consent of the employee without a notice of reduction in two months. In this case, additional compensation funds are paid in the amount of two months wages dismissed employee.
Additional payments do not include the severance pay required by labor law upon dismissal.
The basis for termination of the contract is a written application of the reduced employee with a request for dismissal. The presence in the document of the date and personal signature of the dismissed employee is mandatory.
What to do if your rights have been violated
Unscrupulous employers, when reducing staff, in order to save money and not pay severance pay, try to dismiss the employee under some other article of the Labor Code. Such a dismissal is illegal from a legal point of view, therefore, very often people turn to legal advice or lawyers for help to protect their legal rights in court. You can contact the prosecutor's office or the labor inspectorate. To do this, you must draw up a statement of claim, which can only be filed within one month from the date of dismissal.
PREEMPTIVE RIGHT
LEFT AT WORK
WHEN REDUCING
In the conditions of an unstable economic situation in our country, many employers are forced to reduce their staff and dismiss employees under clause 2, part 1, article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees of an organization, individual entrepreneur). Unfortunately, this measure is now becoming more and more popular.
However, employers, when separating from employees on this basis, must grant them a number of rights and guarantees prescribed by law. If any rights of the employee are violated, he can be reinstated in his previous job through the court or the State Labor Inspectorate, and the employer can still be fined a substantial amount.
One of the rights granted to an employee by law is the obligation of the employer to take into account the employee's pre-emptive right to remain at work when reducing. Today we will talk about this right. How to choose the right one who will stay and who will be fired? What are the nuances in such a choice? How to prevent violations of the rights of employees in determining the preferential right to leave at work?
One norm of the Labor Code of the Russian Federation is devoted to legal regulation regarding the pre-emptive right to leave at work with the reduction of ordinary workers. Recall her.
Article 179
When reducing the number or staff of employees, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications.
With equal labor productivity and qualifications, preference is given to staying at work: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood); persons in whose family there are no other self-employed workers; employees who received an industrial injury or occupational disease during the period of work with this employer; disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland; employees who improve their skills in the direction of the employer on the job.
The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.
Note. This article discusses issues related to determining the pre-emptive right to leave ordinary workers at work (working for individual entrepreneurs, in commercial organizations, etc.). Some features of determining the pre-emptive right may be established in other regulations. So, for example, according to paragraph 4 of Article 31 federal law dated July 27, 2004 N 79-FZ "On the state civil service Russian Federation"The priority right to fill a civil service position is granted to a civil servant with a higher qualification, level vocational education, longer length of service in the civil service or work (service) in the specialty, area of training and higher results of professional performance. These features are not considered here.
From the history. Federal Law No. 90-FZ of June 30, 2006 amended Article 179 of the Labor Code of the Russian Federation and the provisions of this article began to apply to all employers, including employers of individual entrepreneurs. Prior to the introduction of appropriate changes, Article 179 of the Labor Code of the Russian Federation regulated the issues of granting a pre-emptive right to leave at work when laying off only employees of organizations.
Article 179 of the Labor Code of the Russian Federation has already been appealed to the Constitutional Court of the Russian Federation, but the Constitutional Court of the Russian Federation did not find any contradictions in it with the Constitution of the Russian Federation.
Determination of the Constitutional Court of the Russian Federation of December 21, 2006 N 581-O (excerpt):
“...According to Article 37 (Part 1) of the Constitution of the Russian Federation, labor is free; Everyone has the right to freely dispose of their abilities to work, to choose the type of activity and profession. These and other provisions of Article 37 of the Constitution of the Russian Federation, which establish guarantees of free labor, are specified in the Labor Code of the Russian Federation, which regulates the procedure for the emergence, change and termination of labor relations.
Among the guarantees of labor rights directed against the possible arbitrary dismissal of citizens from work, in particular in connection with a reduction in the number of employees (paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation), is the need for the employer to comply with the established procedure for dismissal: the employee must be informed about the upcoming dismissal warned by the employer personally and against signature at least two months before the dismissal; Simultaneously with the warning of the upcoming dismissal, the employer is obliged to offer the employee another job he has (both a vacant position or a job corresponding to his qualifications, and a vacant lower position or a lower-paid job), which the employee can perform taking into account the state of health, and the transfer to this job is possible only with his consent (part three of Article 81, parts one and two of Article 180 of the Labor Code of the Russian Federation).
Part one of Article 179 of the Labor Code of the Russian Federation is also one of the rules governing the procedure for dismissal due to a reduction in the number of employees - it defines a rule based on objective criteria for selecting employees to stay at work. Having established as such criteria a higher labor productivity of an employee and his qualifications, the legislator proceeded both from the need to provide additional measures to protect labor rights to employees with higher results of labor activity and better professional qualities, and from the employer’s interest in continuing labor relations with the most qualified and efficient workers. The correctness of the application by the employer of these criteria when carrying out measures to reduce the number or staff of employees at the request of the employee can be verified in court.
Consequently, the first part of Article 179 of the Labor Code of the Russian Federation, considered in systemic unity with other norms of the Labor Code of the Russian Federation (Articles 81, 180), cannot be regarded as violating the constitutional rights of citizens ... "
Also, according to paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, “termination of an employment contract with an employee under paragraph 2 of part one of Article 81 of the Code is possible provided that he did not have a preferential the right to be left at work (Article 179 of the Labor Code of the Russian Federation) and was warned personally and against signature at least two months in advance about the upcoming dismissal (Part two of Article 180 of the Labor Code of the Russian Federation).
Thus, the employer is obliged to apply the rules on the pre-emptive right to leave at work. Here is how he does it and what difficulties he encounters in doing so, we will consider further.
1. The preferential right to stay at work is not taken into account.
This is a common mistake that can occur when an employee is dismissed for redundancy - the employee's preemptive right was not taken into account. As you understand, ignoring the provisions of Article 179 of the Labor Code of the Russian Federation is a violation. If the employer generally forgets, when laying off his employees, to take into account someone's preferential right to stay at work (when he is obliged to do this), then this may turn out to be negative consequences for him. Further, we will also tell you that there are cases when the employer may not take into account the pre-emptive right to stay at work when laying off employees.
So, what will happen if the employer forgets to apply Article 179 of the Labor Code of the Russian Federation when laying off workers or applied it incorrectly?
Example.
The appeal ruling of the Moscow City Court dated February 4, 2015 in case No. 33-2009 (excerpt):
“...At the same time, as it is seen from the case materials, the defendant's assessment of the plaintiff's pre-emptive right to remain at work, provided for in Art. 179 of the Labor Code of the Russian Federation, was not produced.
In such circumstances, there were no grounds for the court to conclude that there had been a reduction in the position, and, at the same time, the procedure for dismissal had not been violated.
The Judicial Board concludes that there are legal grounds for dismissal under paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the reduction in the number or staff of employees of the organization was not available, and therefore the dismissal of the plaintiff is not legal.
The court did not take into account these circumstances, which led to an illegal and unjustified decision, in connection with which, the decision is subject to cancellation ... "
Thus, we must not forget that when reducing the number or staff of employees of an organization, an individual entrepreneur, one of the important stages of dismissal is the determination of the employee's preemptive right to remain at work. If the employer forgets to do this, the employee can be reinstated in his previous job.
2. Preemptive right to stay at work is not taken into account correctly.
But a mistake is also common in practice, when the employer seems to have taken into account the pre-emptive right to leave one or another employee at work, but did it wrong. For example, he left other workers at work, with lower labor productivity and qualifications. Or, when dismissing, he took into account the wrong factor that needed to be taken into account (for example, the presence of a disease). The following examples clearly illustrate the errors we just mentioned.
Example 1
The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated February 26, 2015 in case No. 33-2978/2015 (excerpt):
“... The court found that from the staff lists from the date and from the date. it follows that in the security department the number of staff units "controller" was reduced from 5 to 1.
Under such circumstances, it appears from the case file that there was a downsizing in OAO Tuymazysteklo.
As follows from the materials of the case and by the parties, it was not disputed that at the time of the reduction in the staff, the position of the controller was occupied by five people: the plaintiff N.I.M., as well as N.F.K., Ch.A.I., B.I.R. ., G.M.M.
Notification of the upcoming dismissal from the position of the controller under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, except for the plaintiff, no one received.
Thus, the court established that only the plaintiff was fired due to the reduction in staff.
From the materials of the case, it is seen that the plaintiff has a higher education, a qualification of a mechanical engineer, which is confirmed by a diploma of series B-1 N ... dated
At the same time, the court correctly pointed out that the inspectors of the security department N.F.K., Ch.A.I., B.I.R., G.M.M., who were given preference during the reduction of the staff, have a secondary education.
The Court also correctly pointed out that N.I.M. has been working in the regime department of JSC "Tuymazysteklo" since the date of the year, while B.I.R. - from date, Ch.A.I. - from date g, N.F.C. - from the date therefore N.F.K., Ch.A.I., B.I.R. experience is less than that of the plaintiff.
Evidence confirming that the plaintiff had a lower labor productivity compared to other employees holding the position of the controller who continued to work is absent and not presented by the employer.
Also, the defendant did not provide evidence showing that the plaintiff has disciplinary sanctions.
In view of the foregoing, the trial court came to the correct conclusion that N.AND.M. had a preferential right to leave at work in relation to N.F.K., Ch.A.I., B.I.R., G.M.M.
Argument appeal that the plaintiff is suffering ischemic disease heart, which does not allow him to properly perform his labor duties, cannot serve as a basis for canceling the court decision, since it does not indicate that he has a lower labor productivity and therefore is subject to dismissal.
In this situation, the court of first instance reasonably satisfied the claims of the plaintiff and reinstated him at work ... "
Example 2
Determination of the Lipetsk Regional Court dated November 28, 2011 in case No. 33-3331/2011. (excerpt):
“... Under the circumstances set forth, considering also that the long-term work of the plaintiff K.L. at the Department of SRYaPM as an associate professor since 1998, testifies to its compliance with the qualification level of the position held, the court came to the correct conclusion that the qualifications of K.L. is higher in comparison with the qualification of FULL NAME25 and FULL NAME26, which was the basis for the use of the plaintiff's knowledge not only at the Department of SRYaPM, but also at the Department of Methods of Teaching Russian as a Foreign Language.
As established KL, working at the department, had a multiplier of 1.14, and the multiplier of FULL NAME25 and FULL NAME26 was 1.09.
As soon as it is rightfully established that the qualifications of K.L. is higher compared with the qualifications left at work FULL NAME25 and FULL NAME26 the court came to the correct conclusion that provided for by Article. 179 of the Labor Code of the Russian Federation, the pre-emptive right of the plaintiff to be left at work with a reduction in the number of employees was violated, in connection with which the dismissal of K.L. produced illegally and her demands are subject to satisfaction ... "
Therefore, the determination of the pre-emptive right to leave at work must be taken seriously, it is necessary to correctly determine the criteria by which employees will be compared. The employer's decision to keep an employee at work must be justified and documented.
3. Exemption of the employer from the obligation to take into account the pre-emptive right to leave at work.
We have already said above that sometimes an employer does not need to take into account the pre-emptive right to leave at work when laying off their employees. When can this happen?
For example, they cut 5 chefs out of 5 existing ones and 5 waiters out of 5 existing ones. Since the positions “cook” and “waiter” are excluded from the staff list, there are no staff positions left for these positions, the preferential right to remain at work among either cooks or waiters is not taken into account. This is confirmed by the existing judicial practice on this issue.
Example 1
The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated January 20, 2015 in case N 33-18392 / 2014, 33-375 / 2015 (excerpt):
«… The appellant's argument in the complaint that his pre-emptive right to stay at work has been violated is not valid, since, according to the current labor legislation, the pre-emptive right to stay at work is examined by the employer if one of the same positions of a certain structural unit is subject to reduction, i.e. between workers occupying the same positions, some of which are subject to reduction, since the degree of labor productivity and qualifications of workers can only be compared by evaluating the performance of the same labor functions by them.
In this case, the position of "project manager" occupied by the plaintiff in the amount of three units was reduced, excluded from the staff list, and therefore there were no grounds for establishing persons with higher qualifications and labor productivity from the employer; the fact that these employees have been transferred to other positions does not entail the application of the provisions of Art. 179 of the Labor Code of the Russian Federation ... "
Example 2
The appeal ruling of the Moscow City Court dated January 16, 2015 in case No. 33-978/2015 (excerpt):
«… The Court of First Instance correctly pointed out that violations of the provisions of Art. 179 of the Labor Code of the Russian Federation on the part of the defendant is not available, since the defendant reduced all the positions of the leading auditors of the department of internal audit and control and audit work, and under such circumstances, the defendant did not have persons who worked in the same positions as the plaintiffs who were to be dismissed over which the plaintiffs could have a preferential right to remain at work ... "
Example 3
The appeal ruling of the Moscow City Court dated April 6, 2015 in case No. 33-6324 (excerpt):
“... the possibility of exercising the pre-emptive right to remain at work depends on the specific composition of persons subject to reduction, occupying positions similar in terms of qualification requirements.
It follows from the materials of the case that all positions of storekeepers and senior storekeepers were subject to reduction. Accordingly, there was no need to investigate the question of the preemptive right of the plaintiffs from the employer ... "
Thus, if all staff units of one position are subject to reduction, then it will not be possible to determine the pre-emptive right to leave a particular employee at work, since all staff units are reduced by position. And to compare employees to determine the pre-emptive right to leave at work, you need to have the same position. Some employees may still remain working for the employer due to transfer to another job (part 3 of article 81 of the Labor Code of the Russian Federation and part 1 of article 180 of the Labor Code of the Russian Federation). We will discuss the problem of determining the pre-emptive right to leave at work and transfer an employee to another job before dismissal, we will discuss below.
Important detail!
And if the position is completely reduced only in the structural unit, and in other structural units and / or in the parent organization the same position remains. Should the employer assess the preferential right to leave the employee at work in such a case?
We came across an interesting court decision in which the court considered that in such a situation it is necessary to evaluate the preferential right to remain at work among all the same positions of the entire organization.
Example.
The appeal ruling of the Supreme Court of the Republic of Khakassia dated August 11, 2015 in case N 33-2020/2015 (excerpt):
“... when resolving O.'s initial claim for reinstatement, it was unconditionally established that the employer did not assess the presence or absence of advantages for leaving O. at work, although in fact in the state legal entity- the employer was left with the joiners of the N category, accepted by the transfer from the Abakan Carriage Section of the Yenisei Branch of JSC FPC to the Krasnoyarsk Passenger Carriage Depot of the Yenisei Branch of JSC FPC on orders from DD.MM.YYYY and from DD.MM.YYYY (l.d . 72-76).
The defendant's argument that the employee's preferential right to remain at work was not subject to assessment, since all units of joiners of the N category were reduced in connection with the abolition of the Abakan Carriage Section, the panel of judges finds unreasonable, since the employment of the released workers should be carried out within the framework of a legal entity, and not within the framework of the structural unit, which was the Abakan Carriage Section ... "
4. Commission in assessing the pre-emptive right to remain at work in case of reduction.
Since the assessment of labor productivity and the qualifications of workers is a laborious task, especially when many workers are to be laid off (mass layoffs), employers create commissions for this. These commissions, as a rule, are engaged not only in determining the preferential rights of employees to leave at work, but also in other matters during the reduction, for example, the offer of transfers, interaction with the trade union, with the employment center, etc.
And as practice shows, the creation of such a commission is not superfluous, including when determining the pre-emptive right to remain at work.
Example.
“... the possibility of exercising the preferential right to remain at work depends on the specific composition of the persons to be reduced and occupying positions similar in terms of qualification requirements. Evaluation of the quality of the work of the employee and his professional suitability is made by the employer.
As indicated above, by order of the defendant on July 17, 2014 N 120, a working commission was created to optimize the number of employees, including to resolve issues on the pre-emptive right to leave employees at work. According to the attached to the case file comparative characteristic electricians for the repair and maintenance of electrical equipment of the 6th category of the power supply section of the service of the chief power engineer of UZHDT, the defendant discussed four candidates K.V.N., K.A.L., P.V.M., G.A.Yu. For these employees, the head of the personnel department of EVRAZ NTMK prepared certificates containing information about the specialty, position held, periods of employment, completion of advanced training courses, and incentives. In fact, they also assessed their observance of labor discipline, their state of health in relation to the characteristics of the production process reflected in the certification card, and the amount of work performed. According to the results of the work of the commission, the right to leave at work was recognized for employees with higher labor productivity and qualifications, excluding the plaintiff.
So, as you understand, the creation of a commission in determining the preferential rights of employees to remain at work in case of reduction is not superfluous. But make sure that the commission does not approach its work formally, but finds out all the significant circumstances necessary for this, and also determines this right for all employees to be laid off.
Example 1
The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated April 10, 2014 in case No. 33-4449/2014 (excerpt):
“...Checking the pre-emptive right, the employer proceeded from the timesheets and master reports, from the presence of three young dependent children, and also from the fact that in the date-date year M.A. most of all was on sick leave and on vacation, has the least number of days worked, according to the results of certification in the date of the year, he was not attested, recognized as inappropriate for his position, does not have a fixed area.
Meanwhile, the panel of judges finds that the meeting of the commission to determine the pre-emptive right of the date of the year was of a formal nature, the case materials do not contain information about which reports of the masters were examined by the commission. The opinion of the commission on granting Kh. and M.D. preferential to M.A. the right to leave at work is not motivated by anything (case file 59), so the basis of the decision is stated verbatim: "circumstances identified in relation to M.A. in the course of the discussion and related to the lack of preferential rights to leave at work."
The formation of M.A. was not discussed, it was not checked for what reasons the plaintiff did not have reports, while it was reliably established that any part of the forest was not assigned to the plaintiff and it was not possible for the plaintiff to submit reports. What provides for the requirement to submit a forest master's report in the absence of a fixed site, a representative of the State Budgetary Institution "Salavat Forestry" to the court court of appeal did not explain.
According to Art. 179 of the Labor Code of the Russian Federation, when reducing the number or staff of employees, the priority right to remain at work is granted to employees with higher labor productivity and qualifications.
Labor legislation does not provide concepts of labor productivity and qualifications of workers, but according to established practice, labor productivity is understood as an indicator that characterizes the fulfillment of production standards, plans and specific tasks.
There were no plans, tasks for the plaintiff and other foremen of the forest; the case materials do not contain evidence for this.
Plaintiff being on sick leave, on vacation, which resulted in fewer days worked, does not indicate lower productivity…”
Example 2
The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated March 28, 2013 in case N 33-3940/2013 (excerpt):
“... In accordance with the order of the branch ... N ... dated ... M.S.T. dismissed in connection with the reduction of staff from... under paragraph 2 h. 1 Article. 81 of the Labor Code of the Russian Federation. Appropriate entries made in the plaintiff's work book.
Satisfying the claims of M.S.T., the court reasonably proceeded from the fact that at the meeting of the commission, when deciding on the priority right to leave at work, 4 drivers of the 4th category were discussed, despite the fact that regular positions of drivers of the 4th category as of .. occupied by 6 drivers of 4 categories. Information regarding 2 more drivers - D.A. and K.Yu. was not presented at the committee meeting. This is not disputed by the parties.
In addition, when discussing this issue, the commission did not take into account the fact that the plaintiff had documents on education: a certificate ... of training in the period from ... to ... under the program a driver of category "B", "C", a certificate ... from ... to... under the "E" category driver program, certificate... of training from... to... under the "D" category driver program, Individual card on completion of training under the third class tractor driver-machinist program. .. from... the presence of a tractor driver-driver's certificate, as well as a certificate of training for drivers of vehicles carrying dangerous goods N ... from..., issued by...
The arguments of the representative of the defendant in the appeal that the employees left at work have higher labor productivity are untenable.
Thus, one of the legally significant circumstances in this dispute was the level of qualification of the plaintiff and other drivers left at work.
The court of first instance was presented with personal cards, diplomas, certificates of K.V., T.A., P.V. testifying to their qualifications and performance.
The panel of judges agrees with the conclusion of the court that it is not possible to conclude from the submitted documents that the qualifications of M.S.T. is below the qualifications of the remaining 5 employees.
The arguments of the representative of the defendant in the appeal that the plaintiff did not provide the relevant documents on education to the personnel department, and therefore, they were not reflected in the minutes of the meeting of the commission N ... dated ..., are untenable, since the absence of documents in the personnel department does not indicate that the plaintiff does not have the appropriate education.
Protocol N ... dated ... indicates the reason for the reduction of the plaintiff's lack of specialized (electrotechnical) education.
In addition, from the documents submitted by the defendant, it is seen that not all of the 5 drivers of the 4th category who remained to work at the enterprise have a specialized (electrotechnical) education.
In accordance with the norms of labor legislation, with equal labor productivity and qualifications, preference is given to families with two or more dependents.
As the court correctly established, the plaintiff has two minor children ... years of birth as dependents. Whereas the drivers of the 4th category who remained to work, according to the data presented by the defendant (K.V., T.A., K.Yu.), do not have minor children as dependents.
The court, assessing the materials of the case, came to the correct conclusion that when the plaintiff was dismissed, on the grounds provided for in paragraph 2 of Art. 81 of the Labor Code of the Russian Federation, the defendant violated the procedure for dismissal, since the priority right to remain at work was discussed by the non-authoritative composition of the commission, all working drivers of the 4th category were not considered, all the documents on education that the plaintiff had were not taken into account ... "
Important detail!
In the Labor Code of the Russian Federation there are no norms obliging the employer to create a commission to determine the pre-emptive right to leave the employee at work during the reduction and in general to carry out the reduction procedure. The employer does this on his own initiative. Workers sometimes refer in court to the fact that they were fired without a commission study of the pre-emptive right to remain at work. How do the courts look at such indignations of workers?
Example.
The appeal ruling of the Moscow Regional Court dated September 3, 2014 in case N 33-18683/2014 (excerpt):
“... Recognizing the plaintiff's argument about the violation of her pre-emptive right to stay at work as untenable, the court proceeded from the fact that in the course of judicial trial when checking the correctness of the application by the defendant of the provisions of Article. 179 of the Labor Code of the Russian Federation, it is indisputably established that the plaintiff did not have higher labor productivity or qualifications compared to other employees, and she does not have the circumstances provided for in part two of this article.
The fact that the employer did not set up a commission to resolve the issue of determining the employee's priority right to leave at work, as the court correctly pointed out, does not give grounds for recognizing the dismissal as illegal, since it does not indicate that the plaintiff has the right to preferential leave at work ..."
But we should not forget that if in any local regulatory act or in a collective agreement (possibly in an employment contract with an employee) there are provisions obliging the employer to create such a commission when carrying out the procedure for laying off his employees, then he will have to do this. According to part 2 of article 22 of the Labor Code of the Russian Federation, the employer is obliged to comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, the terms of the collective agreement, agreements and employment contracts.
Also, the law does not say how the employer should formalize the results of the commission meeting when deciding on the priority right to leave at work. These questions are at the discretion of the employer.
Example.
The appeal ruling of the Irkutsk Regional Court of 08/05/2014 in case N 33-6336/14 (excerpt):
“... The arguments of the appeal of the plaintiff V.A. that there is no protocol of the commission meeting in the case file, in a comparative analysis of labor productivity and qualifications for (data taken) there are no signatures of all members of the commission, cannot lead to the cancellation judgment, since the labor legislation of the Russian Federation does not contain mandatory requirements for the form and content of documents when an employer makes a decision on whether employees have a pre-emptive right to remain at work ... "
But this does not mean at all that the issue of proper formalization of the commission's decisions should be approached negligently. After all, in the event of a dispute, it is the employer who will have to prove his case and bring the available documents to the court. And when the documents are drawn up correctly, they contain all the necessary information, they are issued by an authorized person, then there is more chance that these documents will be accepted by the court as proper evidence.
5. Preferential right and transfer of an employee who was wanted to be laid off to another job.
Many people know that before dismissal for reduction, the employer must offer a transfer to another job (if there are vacancies).
According to part 3 of article 81 of the Labor Code of the Russian Federation, dismissal on the grounds provided for in paragraph 2 of part 1 of article 81 of the Labor Code of the Russian Federation is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or a job corresponding to the qualifications of the employee , and a vacant lower position or lower-paid job) that the employee can perform, taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
Employees sometimes think that the priority right to stay at work is also evaluated during the transfer, among those employees who are supposed to be fired. However, the transfer is offered specifically to those employees who, after assessing the pre-emptive right, do not remain in their previous job. And once again, the employer is not obliged to evaluate such a right when transferring. This is also confirmed by judicial practice.
Example 1
The appeal ruling of the Saratov Regional Court dated April 23, 2015 in case N 33-2354 (excerpt):
«… However, Art. 179 of the Labor Code of the Russian Federation regulates the issue of the preemptive right to remain at work, the same concept as the preemptive right to occupy a vacant position is not in labor legislation, i.e. the right to decide which of the laid-off employees to offer to fill a vacant position (including a newly created one) belongs to the employer, and therefore the court cannot enter into an assessment of the legality of the actions of the administration, which can be performed only at its discretion. The provisions of Art. 179 of the Labor Code of the Russian Federation on the preferential right to leave at work are applied only when the employer decides to leave only a part of several identical positions, and reduce the rest ... "
Example 2
Determination of the St. Petersburg City Court dated September 12, 2011 N 33-13826 / 2011 (excerpt):
“... As stated above, the provisions of Art. 179 of the Labor Code of the Russian Federation are to be applied in cases where the issue of leaving employees holding the same positions at work is resolved.
In turn, the labor legislation does not contain norms that would determine the category of persons who have the pre-emptive right to be transferred to a vacant position.
Thus, resolving the issue of which of the dismissed employees to give preference to when transferring to a vacant position is the prerogative of the employer ... "
Of course, it is advisable for the employer to leave the best of the employees who agreed to the transfer. But here, as can be seen from the above examples, the employer decides for himself who to leave and already without applying Article 179 of the Labor Code of the Russian Federation. Thus, we can conclude that the pre-emptive right is assessed only when the employee leaves at a previous job
6. Assessment of the pre-emptive right to stay at work.
So we come to one of the important questions when considering this topic - how to actually assess which of the workers has greater labor productivity and qualifications?
For information.
Labor productivity- measure (measurement) of labor efficiency. Labor productivity is measured by the amount of output produced by an employee per unit of time (https://ru.wikipedia.org/wiki/Labor_Productivity).
According to part 1 of article 195.1 of the Labor Code of the Russian Federation employee qualification- the level of knowledge, skills, professional skills and work experience of the employee.
The following conclusions of the Bryansk Regional Court are also of interest here.
“...At the same time, the legislation does not fix any specific list of documents indicating higher labor productivity. Therefore, this legal fact is established on the basis of the cumulative assessment of the evidence. These may include data indicating high quality the work performed, the performance by the employee of important responsible tasks or a larger amount of work compared to employees occupying similar positions or performing work in the same profession and the same degree of complexity. In the absence of direct evidence of a higher productivity of a particular employee compared to another employee, indirect evidence of this legal fact may also be taken into account. These may include data on rewarding an employee for high performance in labor.
Qualification is proved by documents on education, on advanced training, professional retraining ... "
Within the framework of this article, we will give several examples from judicial practice, from which it will become clear how employers evaluate the productivity and qualifications of an employee in order to determine the preferential right to leave one of the employees at work. These examples will help clarify the issue at hand.
Example 1
The appeal ruling of the Perm Regional Court dated March 18, 2015 in case No. 33-2557-2015 (excerpt):
“... In determining the priority right to leave M. or R. at work, the court of first instance reasonably took into account the following circumstances:
- M. repeatedly (2007, 2012) raised his professional qualification(North-Western Institute for Advanced Studies of the Federal Drug Control Service of Russia; Ufa branch of the North-Western Institute for Advanced Studies of the Federal Drug Control Service of Russia). R. during his service in the drug control authorities raised his professional qualifications only once in 2010 (North-Western Institute for Advanced Studies of the Federal Drug Control Service of Russia).
- In the period from 2006 to 2012, M. was included in the reserve for promotion to senior positions of deputy head of the organizational and inspection department, head of the organizational and inspection department. R. during the period of service in the drug control authorities was not included in the specified reserve.
- M. has a greater length of service (experience) in the drug control authorities, unlike R. In 2012-2013. M. was involved in the performance of the duties of an assistant in charge of the duty officer of the organizational and inspection department of the department. R. did not fulfill the duties of an assistant to the responsible duty officer of the organizational and inspection department of the department.
- R., unlike M., did not pass physical training tests, while in accordance with paragraph 2 of the Program for operational-combat and physical training of drug control officers, approved by Order of the Federal Drug Control Service of Russia dated December 23, 2006 N 439 / chipboard, operational-combat and physical training of employees of drug control bodies is integral part their professional training and is carried out with the aim of improving the professional knowledge, skills and abilities necessary for the performance of official duties.
In view of the above circumstances, the court came to the correct conclusion that M. had a preferential right to remain at work, taking into account higher qualifications ... "
Example 2
The appeal ruling of the Moscow City Court dated March 6, 2015 in case No. 33-7249 (excerpt):
“... It follows from the materials of the case that when assessing the preemptive right among employees subject to dismissal in case of staff reduction, all significant circumstances were taken into account.
So, employees M.V., M.O. and A.A. occupied positions ..., while, unlike the indicated employees, M.V. did not have a profile higher education, had the least work experience and work experience in the specialty, worked remotely, and therefore preference in terms of work experience, the presence of specialized education, the criterion of speed of work and communication with employees was given to the employees of M.O. and A.A.
The provisions of Art. 179 of the Labor Code of the Russian Federation are equally aimed at protecting the rights of an employee with the best performance in work, giving the latter an advantage over other employees holding similar positions, and the employer’s rights to continue labor relations with the employee, using whose labor he will be able to achieve the highest the results of their activities.
Thus, the actions of the defendant, who made the decision to dismiss M.V., who, as established by the court, has no advantages over other employees, cannot be recognized as illegal or unreasonable ... "
Example 3
Appeal ruling of the Altai Regional Court dated June 25, 2014 in case N 33-5142/2014 (excerpt):
“... The plaintiff has a higher education in the specialty "Organization Manager", as well as secondary specialized education in the specialty "Economics, Accounting and Control" (case sheets 11-14).
Meanwhile, an employee of the company PNKh, holding a position similar to that of the plaintiff, has only a specialized secondary education in the specialty "Accounting" (vol. 1 case sheet 39).
Therefore, the Judicial Board considers that the plaintiff C.A.M. had a preferential right to remain at work in relation to P.N.Kh., whose level of education, and, accordingly, the qualifications are lower. Evidence that P.N.Kh. had a higher labor productivity, the defendant is not represented.
The arguments of the defendant's complaint that the plaintiff's education does not correspond to his position, direction of work, are not supported by evidence.
At the same time, as follows from the case file, the employees left by the employer in a position similar to the one from which the plaintiff was dismissed also have an education in the specialty "Manager", which is confirmed by the list of employees of the logistics department dated 27.08.2013 (vol. 1 case sheet 39).
Given the higher qualifications of the plaintiff in comparison with another employee of the organization left at work, the arguments of the defendant's complaint that the plaintiff has disciplinary sanctions as grounds for his immediate dismissal due to staff reduction in accordance with the provisions of the collective agreement are not accepted as contrary to the law ... "
7. Evaluation of other criteria with equal labor productivity and qualifications
So, having assessed the productivity of labor and the qualifications of workers subject to layoffs, it may turn out that no one can be given preference according to these criteria.
But the law here goes to the aid of the employer and says that with equal labor productivity and qualifications, preference is given to staying at work (part 2 of article 179 of the Labor Code F):
- family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);
- persons in whose family there are no other self-employed workers;
- employees who received an industrial injury or occupational disease during the period of work with this employer;
- invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
- employees who improve their skills in the direction of the employer on the job.
The main thing here is not to violate the principle of the prohibition of discrimination in the sphere of labor, enshrined in Article 3 of the Labor Code of the Russian Federation. Recall this article.
Everyone has equal opportunities to exercise their labor rights.
No one may be limited in labor rights and freedoms or receive any advantages depending on sex, race, skin color, nationality, language, origin, property, family, social and official position, age, place of residence, attitude to religion, beliefs, belonging or non-affiliation to public associations or any social groups, as well as other circumstances not related to the business qualities of the employee.
Establishment of differences, exceptions, preferences, as well as restriction of the rights of employees, which are determined by the requirements inherent in this type of labor established by federal law, or are due to special care of the state for persons in need of increased social and legal protection, or are established by this Code or in cases and in the manner prescribed by it, in order to ensure national security, maintain an optimal balance of labor resources, promote, as a matter of priority, the employment of citizens of the Russian Federation and in order to solve other problems of internal and foreign policy states.
Persons who believe that they have been discriminated against in the sphere of labor have the right to apply to the court for the restoration of violated rights, compensation for material damage and compensation for moral damage.
Sometimes employees mistakenly believe that labor productivity and qualifications should be taken into account in conjunction with other criteria that give advantages to staying at work, which are listed in Part 2 of Article 179 of the Labor Code of the Russian Federation. But this delusion of workers does not find support in the judiciary. Here the approach is unambiguous - part 2 of article 179 of the Labor Code of the Russian Federation is applied only after the application of part 1 of article 179 of the Labor Code of the Russian Federation, that is, when the labor productivity and qualifications of the compared workers turned out to be equal.
Example 1
The appeal ruling of the Sverdlovsk Regional Court dated 03.03.2015 in case N 33-2914/2015 (excerpt):
“... As indicated above, by order of the defendant on July 17, 2014 N 120, a working commission was created to optimize the number of employees, including to resolve issues on the pre-emptive right to leave employees at work. According to the comparative characteristics of electricians attached to the case file for the repair and maintenance of electrical equipment of the 6th category of the power supply section of the chief power engineer of the UZhT, the defendant discussed four candidates K.V.N., K.A.L., P.V.M., G.A. YU. For these employees, the head of the personnel department of EVRAZ NTMK prepared certificates containing information about the specialty, position held, periods of employment, completion of advanced training courses, and incentives. In fact, they also assessed their observance of labor discipline, their state of health in relation to the characteristics of the production process reflected in the certification card, and the amount of work performed. According to the results of the work of the commission, the right to leave at work was recognized for employees with higher labor productivity and qualifications, excluding the plaintiff.
In this case, the correctness of the application of the criteria for assessing the productivity and qualifications of an employee was verified by the judicial board, there are no grounds to disagree with the conclusions of the employer that the plaintiff does not have a preferential right to remain at work. The actions of the defendant, who made the decision to dismiss K.V.N., who, as established, has no advantages over other employees, cannot be recognized as illegal or unreasonable.
In this case, the plaintiff's arguments that he had a preferential right to remain at work, provided for in Art. 179 of the Labor Code of the Russian Federation, as for an employee who has a dependent spouse who is unable to work (retirement by age), since this rule applies only with equal labor productivity and qualifications ... "
Example 2
The appeal ruling of the Yaroslavl Regional Court dated October 29, 2012 in case N 33-5902/2012 (excerpt):
“... As can be seen from the case, both K. and FULL NAME1 have a 6th category, both carry out planned tasks. Thus, the employer needed to investigate the issue of labor productivity of these workers.
From the letter addressed to the commission on job cuts, signed by the site foreman and the lead specialist, it is clear that the productivity of each worker is difficult to compare, since they process different parts. (ld 49) At the same time, the output for 2011 in monetary terms from FULL NAME1 is higher than that of FULL NAME1 (ld 50)
In addition, the Commission as labor productivity were taken into account "unproductive loss of working time", the rate of which FULL NAME1 is less than 10.4%, and the plaintiff - 26.92%.
This circumstance was pointed out in the court of first instance by the representative of the defendant with reference to certificates of labor productivity of these employees, from the content of which it is seen that by "non-productive loss of working time" the employer means that the employee is on sick leave and time off, i.e., in fact, absence from work for a good reason.
Meanwhile, according to the Court of Appeal, labor productivity should be understood as the quantitative aspect of work performance. In other words, the employer determines how much the employee manages to "earn" in a certain unit of time. At the same time, the quality indicators of his work are also taken into account.
In view of the foregoing, the panel of judges believes that such an indicator as "unproductive loss of working time" cannot characterize the productivity of an employee.
Thus, the panel of judges believes that during the consideration of the case, the lower labor productivity of the dismissed employee was not confirmed by the employer, and therefore, given the equal qualifications of FULL NAME1 and K., the employer should have discussed, in relation to these employees, the criteria set out in paragraph. 2 tbsp. 179 of the Labor Code of the Russian Federation - the presence of dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood); the absence in the family of other workers with independent earnings; work injury or occupational disease, etc.
As follows from the case, K. is dependent on a minor son suffering from a disease, the plaintiff's wife does not work, as she takes care of the above child; during the period of work with the defendant K. got an occupational disease.
Meanwhile, the employer did not take into account the mentioned legally significant circumstances when deciding on the pre-emptive right. The minutes of the meeting of the commission on staff reduction indicated only that FULL NAME1 is the most proactive, has 6 thanks. (case sheet 48)
Under such circumstances, the panel of judges agrees with the conclusion of the court that K. has a preferential right in comparison with FULL NAME10 to be left at work ... "
Example 3
The appeal ruling of the Rostov Regional Court dated January 15, 2015 in case No. 33-214/2015 (excerpt):
“... In this case, the plaintiff's arguments about her pre-emptive right to remain at work, provided for in Art. 179 of the Labor Code of the Russian Federation, as for an employee who has two minor children as a dependent, since this rule applies only with equal labor productivity and qualifications ... "
8. Do not forget about the collective agreement.
According to part 3 of article 179 of the Labor Code of the Russian Federation, a collective agreement may provide for other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications.
If the employer does not take into account the provisions of the collective agreement and dismisses the employee who is given the pre-emptive right to stay at work in the collective agreement, then he can see the dismissed employee again when he is restored to his previous job.
Example.
The appeal ruling of the Bryansk Regional Court dated 06/20/2013 (excerpt):
“...According to the Law, only with equal labor productivity and qualifications, other circumstances acquire legal significance: the presence of two or more dependents, the absence of other workers in the family with independent earnings, etc. (part 2 of article 179 of the Labor Code of the Russian Federation).
According to the Collective Agreement, preference is given to single mothers with dependent children under 16 years of age.
The defendant determining the pre-emptive right FULL NAME9 also referred to the presence of her dependents of two minor children.
However, Art. 179 of the Labor Code and the Collective Agreement gives preference only to those persons with minor children who raise children on their own, in the absence of other employees with independent earnings in the family.
Ch., in the opinion of the board, does not have such an advantage, because. married and her husband receives a pension as a former police officer, which is clear from the declaration submitted by Ch. in her personal file, i.e. she is not the only breadwinner in the family.
On the above grounds, the judicial board cannot agree with the court's decision to refuse reinstatement of the plaintiff. It is subject to cancellation.
The panel of judges comes to the conclusion that there was a violation of the procedure for dismissing the plaintiff and, as a result, about her reinstatement at work in the position of senior state customs inspector of the personnel department at the Bryansk customs ... "
Therefore, before carrying out the reduction procedure, look at the collective agreement (if any) and study its provisions. Suddenly there will be an additional list of persons who have the preferential right to remain at work with equal labor productivity and qualifications. Then these provisions of the collective agreement must be applied.
9. Collective agreement and law
When determining the preferential right to remain at work, one employee may have an advantage by virtue of part 2 of article 179 of the Labor Code of the Russian Federation, and the other by virtue of a collective agreement on the basis of part 3 of article 179 of the Labor Code of the Russian Federation (with equal labor productivity and qualifications). In this case, both employees will enjoy advantages over other employees.
Example.
Cassation ruling of the Tyumen Regional Court dated November 15, 2010 in case N 33-4913/2010 (excerpt):
“... The court correctly pointed out that when deciding on the dismissal of the plaintiff, circumstances were not taken into account indicating a preference for staying at work by virtue of the law - part 2 of article 179 of the Labor Code of the Russian Federation
As follows from the minutes of the meeting of the commission to reduce the number of FPS dated March 30, 2010, preference was given to accountants FULL NAME46 who also do not have higher education, but who have benefits on the basis of clause 8.5 of the Collective Agreement.
According to clause 8.5 of the Collective Agreement, when reducing the number or staff of employees with equal labor productivity and qualifications, preference in leaving at work is given to an employee with a long work experience at a postal enterprise who has less than three years left before reaching retirement age (vol. 1, l.d. .97).
From the work book FULL NAME47. it follows that she is 54 years old, has been working at the Federal Border Guard Service since March 30, 2005 (vol. 2, pp. 72 - 77).
FULL NAME48 has been working in the postal industry since 1992 (case file 115, volume 1), as an accountant of the 1st category - since March 1, 2009 (volume 1, case file 168).
Giving preference to leaving at work for employees with a long work experience at a postal enterprise, the defendant did not take into account the provisions of paragraph two of Article 179 of the Labor Code of the Russian Federation, from the content of which it follows that, with equal labor productivity and qualifications, preference in leaving at work is given not only to those categories of persons who enjoy the priority right to remain at work in accordance with the collective agreement, but also to those categories of persons that are provided for by law, including: family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance, which is their permanent and main source of livelihood); persons in whose family there are no other self-employed workers and other categories of persons provided for by law.
During the consideration of the dispute, the court established, and this was confirmed by the case materials, that the plaintiff's family does not have other employees with independent earnings, she is a widow, has two dependent children who are full-time university students (a son is a 2nd year student and a daughter is a graduate student), who do not have their own regular income.
Under such circumstances, the conclusion of the court that the employer violated the procedure for dismissing the plaintiff in connection with the reduction in staff is lawful and justified ... "
10. The preferential right to leave at work and the prohibition on dismissal at the initiative of the employer
The fact is that the Labor Code of the Russian Federation contains a number of norms, by virtue of which it is prohibited to dismiss employees at the initiative of the employer.
According to Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of an organization or termination of activity by an individual entrepreneur.
According to part 4 of Art. 261 of the Labor Code of the Russian Federation “Termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without mother, with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of eighteen or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (other legal representative of the child) is not in an employment relationship, is not allowed at the initiative of the employer (with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of this Code)"
According to Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during his vacation.
Therefore, when employees are selected who are subject to redundancy, all these norms that we have given above and the norms on the pre-emptive right to remain at work (Article 179 of the Labor Code of the Russian Federation) should be applied in aggregate. You can't break any of them.
As a rule, an appropriate commission is created for the observance of all these norms by the employer (we have already described in detail about its work).
Example 1
The appeal ruling of the Omsk Regional Court dated May 7, 2013 in case N 33-2798/2013 (excerpt):
“... 10/18/2012, the employer held a meeting of the commission to determine the pre-emptive right to leave at work to reduce staff, as a result of which it was concluded that _ is not subject to dismissal as having a child under the age of _ years (Article 261 of the Labor Code of the Russian Federation), leaving at work, _ is subject to reduction, A is subject to reduction.
When considering the issue of the priority right to leave at work, the commission studied the personal files of A. and _, compared their professional qualities, labor productivity by comparing the percentage of their implementation of the main planned indicators ... "
Example 2
Appeal ruling of the Vologda Regional Court dated March 27, 2014 N 33-1342/2014 (excerpt):
“...According to the protocol of the commission for determining the pre-emptive right to leave the employees of the institution in the service of July 31, 2013 and the comparison table of employees of FKU IK-1 of the Federal Penitentiary Service of Russia for the Vologda Region by position ..., K2., K3., C had the pre-emptive right to remain in the service ., P1., R. and B., who were either single mothers or mothers raising children under three years old and dismissed by virtue of Art. 261 of the Labor Code of the Russian Federation were not subject.
Therefore, the conclusion that V. has no such right was made correctly by the court, the norms of Art. 179 of the Labor Code of the Russian Federation were not violated by the defendant ... "
Thus, do not forget to study the documents that will confirm not only the presence or absence of the employee's preferential right to leave work, but also the presence or absence of a ban on dismissal at the initiative of the employer.
Let's summarize:
- The possibility of exercising the pre-emptive right to remain at work depends on whether all staff units in the position are reduced or other employees will still work in this position. That is, whether the employer will choose employees who will remain working in this position or there will be no such choice, because the position has been completely reduced.
- The employer is not obliged, by virtue of the provisions of the Labor Code of the Russian Federation, to create a commission to study the issue of the pre-emptive right to leave the employee at work during a reduction, although he has the right to do so.
- When evaluating the pre-emptive right to remain at work in case of reduction, labor productivity and the qualifications of workers subject to redundancy are first compared.
- With equal labor productivity and qualifications of employees subject to redundancy, Part 2 and Part 3 of Article 179 of the Labor Code of the Russian Federation are subject to application.
- The pre-emptive right is assessed only when the employee leaves at a previous job rather than transferring to another job.
- Also, one should not forget about the norms, by virtue of which it is forbidden to dismiss employees at the initiative of the employer. These rules are applied in conjunction with the rules on determining the pre-emptive right to leave an employee at work. Neither one nor the other should be violated.
- The employer is responsible for proving the legality of the dismissal of an employee under clause 2, part 1, article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees of an organization, individual entrepreneur). Therefore, it is also the employer's responsibility to prove that employees who were laid off for redundancy did not have the preferential right to remain at work.
P.S. Article editorially published in the journal "HR practitioner" (№7, 2015)
A.S. Pozdeev
labor dispute lawyer, Volgograd
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Sometimes a cut is inevitable. But even in this case, the employer does not have the right to lay off some employees. Who, when and why has special rights and "privileges" in case of downsizing?
Some employees have special “privileges” when reducing staff or headcount. Simply put, the employer generally does not have the right to fire them for redundancy. True, the workers themselves are often unaware that they have any special rights. Therefore, before you get upset about the upcoming layoff, you first need to make sure that you really do not have any benefits, and the employer has the right to cut you.
Of course, each case is individual, and sometimes it is more profitable to “downsize”, look for a new job and receive financial compensation from the previous employer in parallel. But situations are different, and knowing your rights, in any case, is useful.
So, which employees are considered according to Russian laws"irreducible"? All of them are listed in the Labor Code.
Retrenchment: "unreduced" workers
By the way, not only individual positions, but also entire divisions, divisions, departments can fall under staff reduction. The employer has every right to do this. But, in any case, during the reduction, the rights of employees must be respected, and those who cannot be reduced must remain in the company. If it is planned to reduce the entire unit, then the "non-reducible" employees should be transferred to other departments of the organization.
The employer does not have the right to dismiss the following categories of employees due to layoffs:
Employees who are temporarily disabled - part 6 of article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm disability);
Employees who are guaranteed to keep their jobs during their absence. For example, this includes women on parental leave (part 4 of article 256 of the Labor Code of the Russian Federation), as well as other employees on vacation (this includes the most different types vacations: educational, basic leave, additional, leave without pay);
Pregnant women (an exception is the case when the entire enterprise is completely liquidated) - on the basis of Article 261 of the Labor Code of the Russian Federation;
Women raising children under the age of three; single mothers raising a child under the age of 14 or a disabled child under 18, and other persons (this includes guardians, foster parents, etc.) who are raising such children without a mother (an exception to this rule is, again the liquidation of an enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;
Members of trade unions (their rights are described in paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);
Representatives of workers who conduct collective bargaining;
Participants in the resolution of collective disputes.
If an employee belongs to any of these categories and was, nevertheless, fired on a reduction, reinstatement through the court is easy, one might say, almost “automatically”.
Downsizing: Workers with “Perks”
In addition to workers who cannot be laid off, there are also workers who have advantages over their colleagues. First of all, this applies to a situation where the employer is forced to cut one of two identical positions. For example, out of two accountants working with the “bank, cash desk” section, only one should remain. Whom to choose for reduction? It would seem that the choice depends entirely on the employer. But it is not so.
Labor Code prescribes to the employer whom he should “sacrifice” last. This information is contained in article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be left in the company.
What if the productivity and qualifications of employees are equal? In this case, the employer must take into account other factors. Of the two employees, one of which is subject to reduction, the right to remain in the organization has:
Employees who have a family with two or more dependents;
Employees whose families do not have other self-employed workers;
Employees who received an industrial injury or occupational disease during the period of work with this employer;
Employees who improve their skills in the direction of the employer on the job;
Disabled fighting for the defense of the Fatherland.
So, the Labor Code does not proceed from the fact that “in the face of layoffs” all employees are equal. There are employees who should not be laid off, as well as those who should be laid off only as a last resort. If you belong to one of these categories, you should not forget about your rights.
Edition "Job & Salary"
Hello dear friends!
Today I have positive news, my friend called, who was laid off, remember? He passed the second stage of the interview and actually got a new job. I keep my fingers crossed for him and hope that everything works out in his favor. You and I have already touched on the topic of staff reduction several times, but the thought does not leave me that we have not done enough. Specifically, we haven't discussed the nuances of who can't be made redundant.
Taking advantage of people's ignorance of their rights, many employers act, to put it mildly, ugly, or rather, illegally. It is your responsibility as professionals and employees to know your rights and to share this information with other employees. Money is good, but you can't buy reputation.
Let's consider:
- What category of workers does not fall under staff reductions.
- Under what conditions does an employee have the benefits of retaining a job.
The topic is small and simple, but important for understanding and assimilation. I do not urge you to cram what is written below, but you need to read and understand, believe me, this information will come in handy more than once in your work and in life. Ready? Let's get started!
Who can't be fired for redundancy?
Sometimes a cut is inevitable. But even in this case, the employer does not have the right to lay off some employees. Who, when and why has special rights and "privileges" in case of downsizing?
We recently wrote about what rights an employee has if a company makes redundancies, and how these rights can be defended: What you need to know about layoffs due to redundancy? But some workers have special "privileges" when they reduce staff or headcount.
Simply put, the employer generally does not have the right to fire them for redundancy. True, the workers themselves are often unaware that they have any special rights. Therefore, before you get upset about the upcoming layoff, you first need to make sure that you really do not have any benefits, and the employer has the right to cut you.
Of course, each case is individual, and sometimes it is more profitable to “downsize”, look for a new job and receive financial compensation from the previous employer in parallel. But situations are different, and knowing your rights, in any case, is useful.
So, which employees are considered "irreducible" under Russian law? All of them are listed in the Labor Code.
"Irreducible" workers
By the way, not only individual positions, but also entire divisions, divisions, departments can fall under staff reduction. The employer has every right to do this. But, in any case, during the reduction, the rights of employees must be respected, and those who cannot be reduced must remain in the company. If it is planned to reduce the entire unit, then the "non-reducible" employees should be transferred to other departments of the organization.
The employer does not have the right to dismiss the following categories of employees due to layoffs:
- employees who are temporarily disabled - part 6 of article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm disability);
- employees who are guaranteed to keep their jobs during their absence. For example, this includes women on parental leave (Part 4 of Article 256 of the Labor Code of the Russian Federation), as well as other employees on vacation (this includes a variety of types of leave: educational, basic leave, additional, leave without pay) ;
- pregnant women (an exception is the case when the entire enterprise is completely liquidated) - on the basis of Article 261 of the Labor Code of the Russian Federation;
- women raising children under the age of three; single mothers raising a child under the age of 14 or a disabled child under 18, and other persons (this includes guardians, foster parents, etc.) who are raising such children without a mother (an exception to this rule is, again the liquidation of an enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;
- members of trade unions (their rights are described in paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);
- representatives of workers who conduct collective bargaining;
- participants in the resolution of collective disputes.
If an employee belongs to any of these categories and was, nevertheless, fired on a reduction, reinstatement through the court is easy, one might say, almost “automatically”.
Employees with "perks"
In addition to workers who cannot be laid off, there are also workers who have advantages over their colleagues. First of all, this applies to a situation where the employer is forced to cut one of two identical positions. For example, out of two accountants working with the “bank, cash desk” section, only one should remain. Whom to choose for reduction? It would seem that the choice depends entirely on the employer. But it is not so.
The Labor Code prescribes to the employer who he should “sacrifice” last. This information is contained in article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be left in the company.
What if the productivity and qualifications of employees are equal? In this case, the employer must take into account other factors. Of the two employees, one of which is subject to reduction, the right to remain in the organization has:
- employees who have a family with two or more dependents;
- employees whose families do not have other self-employed workers;
- employees who received an industrial injury or occupational disease during the period of work with this employer;
- employees who improve their skills in the direction of the employer on the job;
- invalids of military operations for the defense of the Fatherland.
So, the Labor Code does not proceed from the fact that “in the face of layoffs” all employees are equal. There are employees who should not be laid off, as well as those who should be laid off only as a last resort. If you belong to one of these categories, you should not forget about your rights.
And if you are not among the “privileged” and you have every right to be laid off? In this case, the employer must pay the employees sufficient monetary compensation.
Source: http://www.zarplata.ru/a-id-32187.html
Who can't be fired due to layoffs?
Before making changes to the staffing table, the manager must make a choice of whom he can and should leave in the workplace, and who will have to leave. The criterion for this is not only an indicator of efficiency, but legally defined norms. There are workers who cannot be fired by law, as well as those who have a preferential right to workplace.
The following categories of citizens cannot be dismissed due to a reduction in the number and staff of employees (Article 261 of the Labor Code of the Russian Federation):
- pregnant women,
- women with children under the age of three
- single mothers raising a child under the age of 14 (a child with a disability - under 18),
- other persons raising these children without a mother.
The following categories of citizens have the preferential right to a workplace during the reduction of employees of the organization (Article 179 of the Labor Code of the Russian Federation):
employees with higher labor productivity and documented qualifications (data on the fulfillment of production standards, on the quality of work, a diploma of higher professional education, obtaining a second education, having an academic degree, academic title, etc.)
with equal labor productivity and qualifications, the following have an advantage:
- family in the presence of two or more disabled family members on the full support of the employee;
The following are considered disabled:
- children, brothers, sisters and grandchildren under the age of 18 or studying full-time in educational institutions regardless of their organizational and legal form. Exceptions are institutions additional education. The norm is valid until the end of such training, and until the age of 23 years. Children, brothers, sisters and grandchildren older than this age, if they became disabled before the age of 18 and have limited ability to work. At the same time, brothers, sisters and grandchildren are recognized as disabled members of the family, provided that they do not have able-bodied parents;
- one of the parents or spouse, grandfather or grandmother, regardless of age and ability to work. A brother, sister or child who has reached the age of 18, if they are engaged in caring for children, brothers, sisters or grandchildren who have not reached the age of 14 and do not work;
- parents and spouse, if they have reached the age of 60 or 55 (men and women, respectively) or are disabled with limited ability to work;
- grandfather and grandmother, if they have reached the age of 60 and 55 years (men and women, respectively) or are disabled with limited ability to work, in the absence of persons who, in accordance with the legislation of the Russian Federation, are obliged to support them (Article 9 of the Law of the Russian Federation " O labor pensions In Russian federation");
- persons in whose family there are no other self-employed workers;
- employees who have received a work injury or occupational disease in this organization;
- disabled veterans of the Great Patriotic War and combat operations to defend the Fatherland;
- employees who improve their qualifications in the direction of the employer on the job;
- other categories of employees provided for by the collective agreement.
In addition, persons specified in federal laws have the preferential right to be left at work:
- authors of inventions (Article 35 of the Law of the USSR dated May 31, 1991 No. 2213-1 “On Inventions in the USSR”);
- spouses of servicemen - in state organizations, military units (Article 10 of the Federal Law of May 27, 1998 No. 76-ФЗ “On the Status of Servicemen”);
- citizens discharged from military service, and members of their families at work, where they entered for the first time after dismissal from military service, as well as single mothers of citizens undergoing military service on conscription (Article 23 of the Federal Law of May 27, 1998 No. 76-FZ “On the Status of Military Personnel”);
- persons who have undergone radiation sickness and other diseases caused by the consequences of the Chernobyl disaster and associated with radiation exposure. Persons who received a disability as a result of the Chernobyl disaster. Participants in the liquidation of the consequences of the Chernobyl disaster in the exclusion zone in 1986-1990. Persons evacuated from the exclusion zone. (Law of the Russian Federation of May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the Chernobyl disaster”);
- persons exposed to radiation as a result of nuclear tests at the Semipalatinsk test site, who received a total (cumulative) effective radiation dose exceeding 25 cSv (rem) (Article 2 of Federal Law No. impact due to nuclear tests at the Semipalatinsk test site).
Provide written notice of reduction
Two months before the dismissal, the employee must be warned against a receipt for the reduction of his position (part 2 of article 180 of the Labor Code of the Russian Federation).
If he refuses to read the written notice, it shall be sent to his home address by registered mail with the notice. It is also necessary to draw up an act of refusal to read the written notice. Subsequently, this will help the employer if the former employee goes to court with a lawsuit on the illegality of the dismissal procedure. The employer will be able to document that he did everything to comply with the procedure, and it was the employee who violated it.
Issue a reduction order
The two main documents that launch the process of staff reduction must be drawn up at the first stage of this process. So it is necessary to issue an order to reduce the number or staff of employees, as well as prepare and approve a new staffing table with a date for its entry into force after the end of the reduction procedure.
Notify the employment authorities and the trade union
It is necessary to notify the employment service authorities and the elected body of the primary trade union organization in writing about the upcoming dismissal of workers no later than two months before the start of the relevant events. In case of mass dismissal of employees - no later than three months. It is necessary to indicate the position, profession, specialty and qualification requirements for employees, the terms of remuneration for each individual employee.
A dismissal is considered massive if:
- an enterprise of any organizational and legal form with a staff of 15 or more people is being liquidated;
- the staff of the enterprise is reduced in the amount of:
- 50 or more people within 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days;
- 1% of the total number of employees is dismissed due to the liquidation of enterprises or a reduction in the number or staff within 30 calendar days in regions with a total number of employees less than 5 thousand people.
Industry or territorial agreements may establish other criteria for assessing mass releases.
Suggest another position
After the employer has informed the employee in writing about his future reduction, he must take measures to employ the employee. The Labor Code requires that each dismissed employee be given the opportunity to transfer to an existing job in writing (part 1 of article 180 of the Labor Code of the Russian Federation). This implies a transfer within one organization, however, the employer may assist in the transfer of the employee to another employer. Dismissal due to a reduction in the number or staff of the organization's employees is allowed if it is impossible to transfer the employee with his consent to another job (part 2 of article 81 of the Labor Code of the Russian Federation). Failure to comply with this requirement is a violation of labor law.
The employee must submit the refusal of the proposed position in writing. This will provide documentary evidence of his unwillingness to take the proposed position.
The positions proposed for internal transfer must be present in the new staffing table. Must have approved job descriptions with a list of duties, as well as the terms of remuneration must be approved.
If the company does not have a job that would match the qualifications of the employee, the employer can offer a lower position in the area. The employer is obliged to offer vacancies in other localities, if it is provided for by collective or labor contracts, or agreements.
Request a reasoned opinion from the trade union
If the former employee is a member of a trade union, then before terminating the employment relationship with him, it is necessary to send there a copy of the order and other documents that contain the rationale for such a decision. It is also worth sending a copy of the dismissal order to the union. It is advisable to carry out these actions after 1 month, with a massive reduction - after 2 months from the moment the employee was warned about the upcoming dismissal.
Elected trade union body, in accordance with Art. 373 of the Labor Code of the Russian Federation, considers this issue within seven working days from the date of receipt of the draft order and copies of documents and sends the employer its reasoned opinion in writing.
If the elected trade union body expressed disagreement with the proposed decision of the employer, it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are drawn up in a protocol. If a compromise has not been reached as a result of consultations, the employer, after ten working days from the date of sending the package of documents to the trade union, has the right to make a final decision. It can be appealed to the relevant state labor inspectorate.
Follow special procedures for certain categories workers
Dismissal in connection with the reduction of heads (their deputies) of elected collegial bodies of primary trade union organizations (including within two years after the end of their term of office), elected collegial bodies of trade union organizations of structural subdivisions of organizations (not lower than shop and equated to them), not exempted from their main job, as well as employees under the age of eighteen years, in addition to the general procedure for dismissal, subject to the provisions of Art. 269, 374, 376 of the Labor Code of the Russian Federation.
Issue an order to terminate the employment contract
It must be remembered that it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the liquidation of the organization) during the period of his temporary disability and during his vacation.
Familiarization of each employee with the order of dismissal in connection with the reduction in the number or staff of the organization's employees is carried out against signature.
Register order
It is necessary to register the order in the Register of orders (instructions).
Pay severance pay
Calculation and payment of wages, severance pay (in accordance with Article 178 of the Labor Code of the Russian Federation) with all payments due to the employee takes place on the day of dismissal. Calculation of monetary compensation for all unused vacations (a note-calculation is required).
Upon termination of the employment contract in connection with the liquidation of the organization, or a reduction in the number or staff of the organization's employees, the dismissed employee is paid a severance pay in the amount of the average monthly salary. The dismissed person retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal. This may be due to the decision of the body of the employment service, if within two weeks after the dismissal, the employee applied to this body and was not employed by him.
In accordance with Article 140 of the Labor Code of the Russian Federation, upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee was absent on the day of dismissal, then payments must be received by him no later than the next day. In the event of a dispute about the amount of the amount due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the above period.
Termination of the employment contract before the expiration of the warning period
With the written consent of the employee, the employer may terminate the employment contract with him before the expiration of the two-month notice of dismissal. This is possible when the employer pays him additional compensation. Its size is calculated from the average earnings of the employee in accordance with the time until the end of the termination notice. (Part 3, Article 180 of the Labor Code of the Russian Federation).
Issue a work book and a personal card
Labor books of employees of the organization are filled in in accordance with the Rules for maintaining and storing labor books, approved by Decree of the Government of the Russian Federation No. 225 dated April 16, 2003 and Instructions for filling out work books (Appendix No. 1 to the Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69). The work book is issued to the employee on the day the employment contract is terminated.
Layoffs caused by staff cuts are a legal tool that is designed to normalize staff units and the number of people working in any enterprises. contracts on this basis always causes a large number of difficult and even conflict situations.
The procedure for layoffs to reduce staff is implemented in accordance with a certain order:
- , announcing the reduction of workers.
- Employees are informed of the upcoming layoffs and are offered other jobs that are available.
- The employment service and trade unions are also notified.
- Direct dismissal of the staff is carried out.
When the manager of the organization makes the final decision on reductions, he creates an order corresponding to the situation. The described order is not a dismissal order, which was issued due to staff reductions, since these are fundamentally different documents that are not issued at the same stage of the reduction procedure.
After the publication of such an order, the head of the enterprise of his employees, who fell under the reduction, about the upcoming dismissal. This stage must be held at least 2 months before the approved date of layoffs. To ensure that all deadlines for the reduction notification are met exactly, a production calendar is used.
A very important aspect in the implementation of the procedure for reducing the number of employees is to take into account the preferential rights to remain in this job, which are owned by some employees. If during the period of compiling the list of working people who act as candidates for the upcoming dismissal, the head of this company has to choose between several employees, he should adhere to the following useful recommendations:
- Legislation prohibits the dismissal of certain employees due to the presence of certain grounds. This category includes, for example, pregnant women, as well as women who have a child who, at the time of the reduction, had not yet reached the age of three years.
- As a general rule, those working people who have a higher degree of qualification and whose labor productivity index is also higher have the first privilege to leave their jobs.
- A situation of equality of the degree of qualification of employees and the level of productivity of their labor may also arise, detailed actions that the company manager is obliged to take in this case will be discussed below.
However, the pre-emptive right in law enforcement practice is not always used. If positions are exercised, then there is no need to assess the preemptive rights of employees. That is, in the event of a reduction in all positions that make up an entire department or other structural unit, the management of the enterprise cannot compare the dismissed workers with anyone, since the organization no longer has those employees who have similar qualification requirements associated with their position.
Thus, the employer does not reveal the existence of preferential rights upon dismissal on the basis of staff reduction, if the following are subject to the expected reduction:
- the only position related to the structural unit
- all staff units with the same position
- the position for which only one staff unit is provided, which has no analogues in the staffing table
Establishing an assessment of skill levels
The degree of qualification of the employees of the enterprise is the criterion that is first taken into account during the ongoing selection of prospective candidates for the expected reduction. According to part 1 of article 179 of the Labor Code of the Russian Federation, those persons who have higher degrees of working qualifications, as well as the highest, with a reduction in the number of employees of the enterprise, must be left at the workplace.
According to article 195.1 of the Labor Code of the Russian Federation, the degrees of qualifications are determined by establishing the level of knowledge, acquired skills and work experience that employees have. This assessment is made by carefully studying the documentation, which contains information about the exact length of service of the working person, his professional and any other additional education, advanced level labor qualifications, the possession of special scientific titles and academic degrees, and through a deep analysis of the results of the work that the worker performs.
If two employees have equal work experience and education category, then the presence of any penalties of a disciplinary nature and made for improper performance of their work duties or for complete failure from their performance.
Any that the head of the enterprise rewards his employees for quality work performed are also taken into account during the assessment of the qualifications of the company's employees, subject to the expected reduction in the number of workers.
Comparison of labor productivity levels of workers
Employee productivity levels are the second most important metric assessed to determine whether workers have preferential rights in preparation for upcoming layoffs. It should be noted that the concept of productivity does not appear in the legislation.
In practice, the labor productivity of a working person is the degree of efficiency of the work performed by him, and the unit of its measurement directly depends on the specifics of the type of activity carried out by the employee. Thus, efficiency can be viewed in terms of the amount of output that has been produced.
Determining the degrees of labor productivity of employees does not cause difficulties if the head of the enterprise uses a system of labor rationing for employees and / or if labor is measured in any quantitative terms, that is, in the number of sales made by each individual employee, the number of certain products that he produced. In all other cases, managers of organizations resort to using an estimate of the number of those professional tasks that have been implemented by an employee for a certain period of time, that is, a request is made for, reports on the work performed by him are studied in detail.
List of persons with certain privileges during the period of reductions
Part 2 of Article 179 of the Labor Code of the Russian Federation regulates the circle of those workers of the organization who are preferred by the management if such parameters as the degree of qualification and the level of productivity of the work performed are equal in their values.
Other things being equal, the advantage is:
- Those employees whose families do not have other working people registered, that is, this person acts as the sole breadwinner of the family.
- Workers who are currently dependent on two or more members of that family. In order for an individual family member to officially receive the status of a dependent, two circumstances must be present:
- the absence of such a parameter as the person's ability to work, due to age or the current state of his health
- provision of material support by a working person who is a candidate for the upcoming reduction, in this case, the content can be either full or partial, but it clearly acts as the only source that maintains a decent standard of living for a dependent
- Those employees who have acquired any diseases associated with their work activity, or injuries at the enterprise during the periods of performance of their professional activity the head of the organization.
- Working people who are invalids of the Second World War and any hostilities in which they appeared in the defense of the security of the Fatherland.
- Those employees who were sent by their employer to improve their qualifications without interrupting their activities.
According to part 3 of article 179 of the Labor Code of the Russian Federation, all other circumstances that provide employees of the organization with preferential rights in the event of a reduction in the number of employees can be recorded in separate agreements drawn up collectively.
The legislation does not contain specific and clear instructions that affect the procedure for establishing the privileges of employees to remain in the workplace in the event of a reduction in the number of employees of the enterprise.
The courts have confidence in such a procedure, which was carried out on a commission basis and with the subsequent consolidation of the results obtained directly in writing.
Key points in the implementation of this procedure:
- The composition of the ongoing should include the heads of precisely those departments in which it is planned to carry out the reduction. There should also be people who represent trade unions and other structural units, for example, personnel, legal, performing quality control.
- The creation of this commission should be formalized by orders for the enterprise, which will determine the competence of each of its individual members, that is, the heads of departments are responsible for reporting on the work performed, the characteristics of workers, and employees of the personnel department, for example, provide information on incentives and penalties.
- It is effective to compile tables that reflect the comparison of job performance and qualifications according to several criteria.
- The results of the audited meetings of the commissions must be recorded.
- The conclusions of this commission should be based on an assessment of the level of performance of each individual employee according to the sum of the criteria. The court does not recognize dismissals as legitimate if a higher degree of qualification of one worker was established, based on the lower one of any other worker.
- If those employees of an organization that can presumably be reduced are registered as active members of trade unions, then the opinions of its members must be taken into account.
Determining the preferential rights of employees is the most important procedure during the period of reductions in the number of employees of the company. This activity must fully comply with all the norms of the adopted labor legislation. Any employer will carry out such a procedure very carefully and reflect the results and all the results of each individual stage in the documentation, if he is interested in recognizing the dismissals of his employees as illegal.
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