The right to a job: which categories of workers cannot be dismissed in case of redundancy? Seek a reasoned union opinion. Dismissal of a layoff pensioner

Let's consider:

• What category of workers does not fall under the staff reduction.
• Under what conditions does an employee have the advantage of keeping the 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 be useful to you more than once at work and in life. Ready? Let's get started!

Who can't be fired due to staff cuts?

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" during staff reductions?

Recently, we wrote about what rights an employee has if the company is downsizing, and how these rights can be defended: What you need to know about layoffs for layoffs? But some workers have special "privileges" when they cut their staff or the number of staff.

Simply put, the employer does not have the right to fire them at all due to staff reductions. True, workers themselves often do not even suspect that they have any special rights. Therefore, before you get upset about the upcoming layoff, you must first make sure that you really do not have any benefits, and the employer has the right to lay you off.

Of course, each case is individual, and sometimes it is more profitable to "reduce", to look for new job and at the same time receive financial compensation from a past employer. But situations are different, and knowing your rights, in any case, is useful.

So, which employees are considered “non-redundant” under Russian law? They are all listed in Labor Code.

"Non-redundant" workers

By the way, not only individual positions, but also entire subdivisions, divisions, and departments may fall under the reduction of staff. The employer has every right to do this. But, in any case, during the layoff, the rights of workers must be respected, and those who cannot be laid off must remain in the company. If it is planned to reduce an entire department, then the "non-redundant" employees should be transferred to other departments of the organization.

The employer does not have the right to dismiss the following categories of workers to reduce staff:

1. workers who are temporarily disabled - part 6 of article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm incapacity for work);
2. workers who are guaranteed the preservation of their jobs for the period of 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 leave (this includes the most different types vacations: study, basic leave, additional leave without pay);
3. pregnant women (the 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;
4. 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 raise such children without a mother (an exception to this rule is, again the liquidation of the enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;
5. members of trade unions (their rights are described in clauses 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);
6. workers' representatives who bargain collectively;
7. participants in the settlement of collective disputes.

If an employee belongs to any of these categories and was, nevertheless, dismissed due to redundancy, reinstatement through the court happens easily, one might say, almost in "automatic" mode.

Employees with "privileges"

In addition to employees who cannot be laid off, there are also employees who have advantages over their colleagues. First of all, this applies to a situation when an employer is forced to cut one of two identical positions. For example, out of two accountants working with the bank, cash desk, only one should remain. Who should you choose for the reduction? It would seem that the choice depends entirely on the employer. But it is not so.

The Labor Code dictates to the employer who he should “donate” 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 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 consider other factors. Of the two employees, one of whom is subject to layoff, the right to remain in the organization is possessed by:

1. employees with a family with two or more dependents;
2. employees with no other self-employed workers in their family;
3. employees who received a work injury or an occupational disease during the period of work for this employer;
4. employees who improve their qualifications in the direction of the employer on the job;
5. disabled combatants to defend the Fatherland.

So, the Labor Code does not assume that “in the face of layoffs” all workers 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 included in the "privileged" category and you have every right to be laid off? In this case, the employer must pay the employees a fairly substantial monetary compensation.

Source: http://www.zarplata.ru/a-id-32187.html

Who cannot be fired due to layoffs?

Before making changes to the staffing table, the manager must make a choice who 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 certain norms by law. There are employees who cannot be dismissed by law, as well as those who have a pre-emptive 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 disabled child - under 18),
• other persons raising these children without a mother.

The following categories of citizens have the preferential right to a workplace when the organization's employees are laid off (Article 179 of the Labor Code of the Russian Federation):

workers with higher labor productivity and documented qualifications (data on the fulfillment of production standards, on the quality of work, diploma of higher vocational education, obtaining a second education, having academic degree, academic rank, etc.)
with equal labor productivity and qualifications, the following have an advantage:

• family in the presence of two or more disabled family members for full content employee;

The following are recognized as disabled:

• children, brothers, sisters and grandchildren under the age of 18 or studying in full-time v educational institutions regardless of their organizational - legal form... The exception is institutions of additional education. The norm is valid until the end of such training, and until the age of 23 years. Children, brothers, sisters and grandchildren over this age, if they become disabled before the age of 18 and have a limited ability to work. At the same time, brothers, sisters and grandchildren are recognized as disabled family members, 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 under the age of 14 and do not work;
• parents and spouse, if they have reached the age of 60 or 55 (respectively, men and women) 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 Russian Federation are obliged to maintain them (Article 9 of the Law of the Russian Federation "On labor pensions In Russian federation");
• persons in whose family there are no other workers with independent earnings;
• workers who have received a work injury in this organization or Occupational Illness;
• disabled people of the Great Patriotic War and fighting to defend the Fatherland;
• employees who improve their qualifications in the direction of the employer on the job;
• other categories of workers stipulated by the collective agreement.

In addition, the persons specified in federal laws have the preferential right to remain at work:

1. authors of inventions (Article 35 of the USSR Law of May 31, 1991 No. 2213-1 "On inventions in the USSR");
2. spouses of military personnel - in government organizations, military units (Art. 10 Federal law from 27.05.98 No. 76-FZ "On the status of military personnel");
3. citizens dismissed from military service, and their family members at work, where they entered for the first time after leaving military service, as well as single mothers of citizens passing military service upon conscription (Article 23 of the Federal Law of May 27, 1998 No. 76-FZ "On the Status of Servicemen");
4. persons who have suffered from radiation sickness and other illnesses caused by the consequences Chernobyl disaster and related to radiation exposure. Persons with disabilities 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. (RF Law of 15.05.1991 No. 1244-1 "On social protection citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant ");
5. persons exposed to radiation as a result nuclear tests at the Semipalatinsk test site, which received a total (accumulated) effective radiation dose exceeding 25 cSv (rem) (Article 2 of the Federal Law of 10.01.2002 No. 2-FZ "On social guarantees citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site ").

Provide written notice of reduction

Two months before dismissal, the employee must be warned against receipt of 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 notification, then it is sent to him at his home address by registered mail with notification. It is also necessary to draw up an act of refusal to read the written notification. Subsequently, this will help the employer if the former employee goes to court with a claim on the illegality of the dismissal procedure. The employer will be able to documentarily confirm 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 reducing staff 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 the date of 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 services 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 the event of a mass dismissal of employees - no later than three months. It is necessary to indicate the position, profession, specialty and qualification requirements to employees, the terms of remuneration of each specific employee.

Dismissal is considered massive if:

1. an enterprise of any organizational and legal form with a number of employees of 15 or more people is liquidated;
2. the staff of the enterprise is reduced in quantity:
   • 50 and more people within 30 calendar days;
   • 200 or more people within 60 calendar days;
   • 500 or more people within 90 calendar days;
3. leaves 1% the total working in connection with the liquidation of enterprises or a reduction in the number or staff within 30 calendar days in regions with a total number of employed less than 5 thousand people.

Sectoral or territorial agreements may establish other criteria for assessing mass release.

Suggest another position

After the employer has informed the employee in writing about his future layoff, he must take measures to employ the employee. The Labor Code prescribes to provide an opportunity for each dismissed employee to be transferred to an existing job in writing (part 1 of article 180 of the Labor Code of the Russian Federation). This implies a transfer within the framework of one organization, however, the employer can assist in the transfer of an 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 legislation.

The employee must submit the refusal of the proposed position in writing. This will allow you to have documentary evidence of his unwillingness to take the proposed position.
Positions proposed for internal reassignment must be on the new staffing table. The presence of approved job descriptions with a list of responsibilities, and the terms of remuneration must also be approved.

If the company does not have a job that would correspond to the qualifications of the employee, the employer can offer a lower position in the given locality. 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 union opinion

If a 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.

An 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 its motivated opinion in writing.

If the elected trade union body disagrees with the proposed decision of the employer, it will hold additional consultations with the employer or his representative within three working days, the results of which are recorded in a protocol. If a compromise has not been reached as a result of consultations, the employer, after ten working days from the moment the package of documents is sent to the trade union, has the right to make a final decision. It can be appealed to the relevant state labor inspectorate.

Observe a special procedure for certain categories of workers
Dismissal in connection with the reduction of heads (their deputies) of the elected collegial bodies of primary trade union organizations (including within two years after the end of their term of office), of the elected collegial bodies of trade union organizations structural units organizations (not lower than the shop floor and those equated to them) not exempt from their main job, as well as employees under the age of eighteen, are allowed in addition to general order dismissal in compliance with the provisions of Art. 269, 374, 376 of the Labor Code of the Russian Federation.

Issue an order to terminate an employment contract

It must be remembered that the dismissal of an employee at the initiative of the employer (with the exception of the liquidation of the organization) is not allowed during the period of his temporary disability and during his vacation.

Familiarization of each employee with a dismissal order due to a 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 (orders).

Pay severance pay

Calculation and payment wages, severance pay (in accordance with Art. 178 of the Labor Code of the Russian Federation) with all payments due to the employee occurs on the day of dismissal. Payment monetary compensation for all unused vacations (registration of a calculation note is required).

Upon termination 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 severance pay in the amount of the average monthly earnings. For the dismissed, the average monthly earnings for the period of employment are retained, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly earnings are 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 it.

In accordance with Article 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, the payment of all amounts due to an 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 due to the employee upon dismissal, the employer is obliged to pay the amount not contested by him within the above period.

Termination of an employment contract before the expiry of the warning period

With the written consent of the employee, the employer can terminate the employment contract with him before the expiration of the notice of dismissal two months in advance. This is possible when the employer pays him additional compensation. Its size is calculated from the employee's average earnings in accordance with the time until the end of the notice of dismissal. (part 3 of article 180 of the Labor Code of the Russian Federation).

Issue a work book and 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 the Government of the Russian Federation No. 225 dated 04.16.2003 and the Instruction for filling out labor books (Appendix No. 1 to the Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69). Employment history issued to the employee on the day of termination of the employment contract.

The adoption of the law on the reduced reindexing of the size of pensions for employed (officially working) pensioners was rapid. They first started talking about him since September 2015, and in 2016, from February 1, the pensions of working pensioners were increased by only 4%, while the rest of the categories of pensioners, in fact not engaged in work, were increased by 7%. This law was promoted by the heads of the Ministry of Labor Maxim Topilin and the Ministry of Finance - Anton Siluanov. The argument was simple - if a citizen feels the opportunity to continue labor activity and after reaching retirement age, and his earnings exceed those established in the region living wage- the size of his pension is not so important. Rather, it comes on the annual indexation of pensions.

The bill has more critics than those who approve of it. However, if you look at the situation from the point of view of the current economic situation, its introduction was justified. If the government has decided even on the Ministry of Internal Affairs apparatus (despite the fact that the latest global reform of the department dismissed about 20% of employees), then increase the size pension payments for those who, as conceived by the creators of the bill, have enough to live on - one of the ways to solve the acute shortage of money in the budget. After retirees officially employed in commercial organizations, pensions were not counted, many of them started talking about the fact that, most likely, a wave of redundancies should be expected in the near future. Will employers lay off working retirees in 2016? We tried to understand this issue, weighing all the pros and cons.

Should working pensioners expect redundancies in 2016?

As usual in such cases - one Moscow company that is engaged in clarifying public opinion... V in this case the conversation is about think tank Andrey Filippov "Globus-trust". The question of whether they are going to fire employed pensioners for any reason or without them was asked to the heads of large, medium and small enterprises. According to the published results, the balance of opinions was distributed as follows:

1. No, there are no plans to hold such events in the coming year - 56% interviewed entrepreneurs,
2. Yes, this issue may be raised on the agenda in the near future - 26% interviewed entrepreneurs,
3. I find it difficult to answer - 18% of interviewed entrepreneurs.

Points for and against"

The overwhelming majority of employers who have announced a possible reduction in the number of retirement age workers employed in their state said that the cuts, if any, have nothing to do with the bill canceling the increase in pensions for pensioners in formal work with a salary higher than the subsistence level. minimum. In their words, this measure (reduction) is common for all categories of workers and pensioners as a class do not represent the main goal. the main objective in this case - cost reduction, and the payroll is the most costly part in most enterprises.

Those entrepreneurs who categorically rejected the planned reduction in the number of pensioners in the near future, also said that if there are layoffs, they will be of a household, and not a mass character, since new law does not affect the conduct of business in the accounting department of the enterprise. At the same time, every third of the interviewed businessmen said that most likely in Russia in 2016 we should expect an increase in cases of transfer of pensioners to "black cash" or wages "in an envelope." Thus, according to the surveyed, employers will reduce the costs of insurance and tax payments, and retirees, fearing dismissal, will agree to an unofficial salary with the same salary.

For some citizens, the important question is, who is being laid off in the first place when the staff is downsized? To find out what these categories of workers are, you first need to find out who can not be fired in any case and how is the selection of those in whom the organization no longer needs?

Dismissal procedure for reduction of staff

Terminate labor relations with some employees, the manager is sometimes the only way to avoid bankruptcy. At the same time, there is an opportunity not only to stay afloat, but also to choose the most worthy candidates... Dismissal will take place on the basis of Part 2 of Article 81 of the Labor Code of the Russian Federation.

When deciding to reduce the staff, the boss selects those with whom it is possible to part without prejudice to the organization, a notification is created that their dismissal will soon be made. Employees must familiarize themselves with this information no later than 2 months before the upcoming process.

At the same time, the head must notify the central office that soon there will be an influx of unemployed, and if layoffs are massive, then the labor exchange is informed 3 months in advance.

Throughout this period, instead of removed from staffing table positions, the employee who has been laid off should be offered other vacancies for which he has enough qualifications and experience. Workers can give up jobs an unlimited number of times.

Any employee has the right to resign earlier than the appointed date, while he must be paid some compensation for the early termination of the employment contract.

Oddly enough, not all workers are interested in information on how to avoid being laid off.

It is precisely because of the increased payments for 2 or 3 months, on the contrary, that many are wondering how to get cut. Also, the desire to be laid off often arises among persons who have committed repeated violation of the terms of the employment contract, thus, having fallen under the layoff, he will avoid possible dismissal under the article.

Who can't be cut

The boss should be aware of who should never be laid off. If the employment contract with these categories of people is terminated, the employer can seriously harm their own career.

The following employees are insured against layoffs at the legislative level:

1. Pregnant women and those on maternity leave.
2. Single mothers raising children up to 14 years old or a disabled person up to 18 years old. Lonely fathers are also included here.
3. Employees with many children, that is, those with 3 or more children.

In addition, those employees who have more than high level qualifications compared to other workers or those with high productivity.

Important! While any of the employees is on vacation or recognized as temporarily disabled, they are not entitled to reduce it. In addition, those who are sent for advanced training are also not considered to be redundant.

Who can be cut?

Other categories of workers also have advantages in layoffs. After those categories are excluded from the list of persons whom they would like to dismiss, terminate the contract with which in this moment it is not possible to check whether candidates for layoffs are not persons who need to be left if their level of qualifications and experience is not lower than that of others.

These workers include:

1. Inventors. Benefits for the state must be patented, regardless of whether the result of inventions is ready or is in development.
2. Servicemen of the Russian Federation who changed their activities for the first time.
3. Disabled due to hostilities.
4. Mothers and spouses of military personnel.
5. Those who are dependent on at least 2 people. Not only minors are taken into account, but also older relatives who have lost their ability to work.
6. The only breadwinners of the family.
7. Those who have an occupational disease or the fact of injury at the enterprise has been established.

In addition, those workers who are registered as orphans cannot be fired until the age of 23.

It is important for those who fall under the layoff to remember that immediately after dismissal, it is necessary to contact the CPC so that in the event of unemployment, they will be paid compensation within three months.

Who is being cut in the first place?

If you ask the question of who gets cut in the first place, then the answer will be obvious. Most likely, those who give the lowest results in terms of labor productivity or do not have sufficient qualifications to further work... It is necessary to make a comparison in equal conditions for all employees, while it is necessary to take employees who are in the same position.

In some organizations, the practice of laying off retirees is because in some enterprises their productivity drops significantly. However, in those organizations where a lot of experience is required, that is, mental work, on the contrary, they will leave exactly those who have been holding this position for a long time, even if the employee has long stepped over the pre-retirement age.

For reference! According to Part 1 of Art. 42 of the Labor Code of Ukraine, the categories of citizens who cannot be fired and who enjoy priority are the same as in the Labor Code of the Russian Federation.

How can an unfair cut be challenged?

If the worker was dismissed illegally, or the procedure for terminating the employment contract was violated, it is necessary to protect your rights. It is possible to contact at least three organizations:

• the prosecutor's office;
• court;
• labor inspection.

The terms of contacting the labor inspectorate are not limited; other authorities can only be contacted within 30 days after the layoff.

When writing a complaint or claim, you must provide evidence of the illegal reduction. First of all, these are documents confirming the benefit, for example, a certificate of family composition, which indicates that the employee is a single mother, or provide a medical certificate that the employee has received an occupational disease while working at the enterprise.

The manager will be obliged to reinstate the employee in his position, as well as impose penalties on him. In addition, compensation for moral damage can be requested in court if, for example, due to the loss of a job and the experiences associated with this situation, the worker's health condition has deteriorated sharply.