When enterprises are faced with an internal economic crisis, there is a need for dismissal to reduce the staff of the organization. Such a procedure is provided for by applicable law and must be carried out in compliance with its rules and norms.
Staff reduction concept
The number of employees of an enterprise is a list of employees working in this organization. Staff reduction means a change in the direction of reducing the actual number of employees.
The staff is the total number of all positions provided for in this organization. Thus, the reduction refers to the removal from the staffing table of some posts or their quantitative composition.
Dismissal on the reduction of staff does not always imply a decrease in the total number of employees. Sometimes there is a redistribution of the number of full-time employees. For example, if instead of three accountants it is planned to introduce one accountant position and two additional drivers, then the total number will not change, and the staff will be redistributed.
Dismissal of layoffs, a sample of the procedure
The process of making cuts in production should be carried out in a strictly agreed manner. There are legalized rules by which layoffs are made to reduce:
- Drafting and publication of an order on amendments to the staff and numerical reduction of employees. This document compiles a list of posts that are subject to dismissal or reduction in the staff list, indicating the date of entry into force and termination of their employment contracts. For this purpose, a special commission is created, whose duties include resolving all issues related to notifying employees of their dismissal, as well as notifying the employment center and trade unions.
- A notice of dismissal by layoffs is prepared in a form containing all the necessary information about the ongoing abolition of the post. It should be aimed at familiarizing employees with a signature. This applies to those employees who are on the list for reduction. Such an event should be held no later than 2 months before the date of termination of employment contracts with them. The delivery of such notices must be carried out in the presence of several representatives of the employer in order for them to act as witnesses if the employee refuses to familiarize himself or disagrees with the notification. Such facts should be recorded by drawing up special acts.
- Dismissal to reduce an individual employee is carried out with his mandatory notice. In this case, the employer must offer the employee all the vacant places corresponding to his qualifications within the administrative-territorial area in which the organization is located. Also, the employer must provide a choice of positions that this employee can hold within the organization, and he will be transferred to one of them if agreed. If the company does not carry out such actions, then the dismissal of the employee will be considered illegal and may be appealed in court with recovery at work. If the employee voluntarily refuses the vacancies offered to him, then the employer must draw up an act in writing on this fact, which in proceedings can act as evidence in court.
- Together with the notification of the employee, 2 months prior to its entry into force, the employer must also notify the Employment Center. For this organization, it is necessary to provide documents for a period of 3 months before the planned reduction, if it is massive. The notice submitted to the employment center must indicate the full list of posts falling under the reduction, and the number of employees being laid off, as well as qualification requirements and the level of remuneration for their work. If the enterprise includes several divisions located in different settlements in its structure, it is necessary to notify each of the Employment Centers. In the absence of notification to the employment center about the reduction of the employee, the order will be considered invalid and illegal.
- Trade union organizations must be notified at the same time as the employment center of the planned reduction. This process is carried out no later than 3 months. In the absence of the fact that the employer notified the union, such actions will be considered illegal.
- The dismissal of the reduction is made after 2 months from the date of notification of the employee. A dismissal order is issued, and the entire necessary package of documents is also executed. These actions are affixed with the signature of the employee in the time allotted by law. A handbook with a corresponding mark is issued on hand (that there has been a dismissal to reduce staff), and a full calculation is made.
- A severance pay is an employer's compensation payment, which is compulsory and is made within the statutory deadlines.
Reasons for staff reduction
Under current law, the employer is not required to provide information about the reasons for the decision to layoffs on layoffs. He has the right to independently manage the process of effective economic management of the enterprise and the rational use of its property, which may be followed by a decision to change the staff.
Thus, the dismissal in connection with the reduction does not have to be argued for by the employee who fell under the reduction, but it is recommended that each manager do this. Indeed, in accordance with the constitutional right of an employee to work, the employer must provide evidence of the effect of an excess of personnel on production processes.
Preemptive right
In some cases, an employee may have a preemptive right to leave him in his current position, in connection with which the employer does not have the right to reduce it or is obliged to offer another position. And if the employee refuses this opportunity, the employer does not have the right to dismiss him.
The pre-emptive right arises when an employee has labor productivity or qualifications higher than other employees holding the same positions. Under equal conditions, there are a number of job recovery preferences:
- Family circumstances. If the employee is dependent on two or more disabled family members.
- Persons in whose family due to health or age there are no other suppliers.
- Employees who have received professional injuries or illnesses while working in the organization.
- Disabled people fighting.
- Workers who are continuing education aimed at training by the employer.
In the event of a dispute submitted to the court, if the employee can prove that those remaining in similar positions have less qualifications and labor productivity than himself, then the dismissal may be declared illegal, with the employee reinstated.
When not to cut
Dismissal cannot be applied to an employee if:
- He is on vacation.
- Temporarily disabled.
- This is a pregnant woman.
- This is a woman who has a child who is under 3 years old.
- This is a single mother raising children under the age of 14, or a disabled person of minor age.
- This is an employee who has on raising children of these categories without a mother.
Juvenile reduction
In accordance with the current Labor Code under Article 269, the dismissal of a reduction employee if the employee is a minor is possible only with full liquidation of an organization or with the consent of the State Labor Inspectorate for Minors. Only with the written permission of this organization dismissal order will be deemed valid and legal.
Retirement reduction
Dismissal of a layoff employee if the employee is on retirement benefits is done on a general basis. However, if the retired pensioner is not provided with work by the Employment Center over the next two weeks, the company is obligated to pay the average monthly salary within 3 months from the day of dismissal.
Dismissal step by step dismissal
If necessary layoffs due to the reduction of staff, the employer must adhere to the following order:
- The issuance of the decree on the creation of a commission to reduce staffing.
- Make a decision by the commission on drawing up a protocol and an accurate list of employees to be reduced.
- Issuing an order by the employer to reduce staff with a clear list of posts and employees to be reduced.
- Notify the employee of the upcoming dismissal.
- Offer the employee to take another vacant position.
- Notify the union, if available, of planned reductions.
- Obtain permission from the union for a candidate identified by the employer.
- If there are minors on the list, get the consent of the State. labor inspectorates and commissions for minors and the protection of their rights.
- Notify the local employment service in writing.
- Document the transfer of employees who agreed to take other positions.
- Formally formalize the dismissal of workers who have not expressed their consent to take the proposed vacancies.
- Calculate the payment of severance pay and compensation to employees.
Compensation Payments
Upon termination of the employment contract, if the employee has not expressed his consent with the opportunity to take a vacant place in the enterprise, the employer is obliged to appoint and pay severance pay on dismissal, which should be equal to the average monthly salary of the employee. In the case of a designation of an increased amount established in accordance with a collective or labor agreement, the organization is obligated to pay such an amount. The Labor Code of the Russian Federation provides for the payment of dismissal benefits in connection with a reduction in the organization’s staff, as well as the mandatory payment of taxes from them.
In addition to the payment of severance pay, the enterprise has an obligation, at the time of employment of the dismissed employee, not exceeding 2 months from the day of dismissal, to retain his average earnings. These payments may persist for the third month. Such a decision may be taken by the employment service if, after two weeks from the date of dismissal, the employee applied to these bodies and was not employed by them.
Retirement compensation is provided if, at the time of notification of the employee about the upcoming reduction, he agreed to the early termination of his employment contract, which must be executed in writing. Such compensation has the size of the average earnings.
Reduction in union workers
Dismissal to reduce the parties, one of which is an employee of a trade union organization, must be carried out in the usual manner.And also notify representatives of the organization, who must make an informed decision on this employee. This information must be provided to the manager no later than 7 days from the date of notification. The following documents should be submitted by the employer:
- Draft Reduction Order.
- Written justification of the reasons.
If the trade union organization does not agree with the decision of the head and within the specified 7 days presented his opinion to him, a dialogue may be organized between the employer and representatives of the trade union organization on the appropriateness and legality of the decision. In this case, the union is obliged to provide solutions to the leader within the next three days. If no general decision has been made, the employer reserves the right to make a final decision, which can be challenged in court.
It should also be noted that the head has the right to terminate employment contract with employee no later than 1 month after receiving the opinion of the trade union. At this time, periods when the employee was on vacation or was absent due to temporary disability should not be included.
In this case, an ambiguous situation may arise when the employer notifies the trade union organization about the reduction of workers in 2 months, and in the very first days stipulated by law, the trade union expresses an opinion in the form of consent to the reduction of the said employee. Then, by the time the termination of the employment contract comes, more than 1 month passes, and such an action will be considered illegal, which will entail the reinstatement of the employee. In such cases, the employer repeatedly requests a written opinion from the union, the validity of which coincides with the time of termination of the employment contract.
Dismissals to reduce managerial positions of trade union organizations are allowed only with the prior consent of higher elected trade union organizations. And in the absence of such permission, the employer cannot reduce the leadership position of the union. If the employer decides to dismiss such an employee without the consent of higher trade union organizations, then such dismissal is illegal and entails the reinstatement of the employee in his former position.
At the same time, the employer is obliged to provide the higher body of the trade union organization with written reasoned evidence indicating the reasons for the dismissal for economic growth and development of the enterprise, which should not be conditional on the employee performing trade union activities.
If the employee is the leader of a trade union that is not related to this enterprise, then the director of the enterprise must also receive confirmation from higher trade union organizations to dismiss such employee. And if this consent to the dismissal is not obtained, it will also be considered illegal and invalid.
In some cases, employees express a desire to receive copies of documents: a letter of resignation, notice and other papers. Such a requirement must be stated in writing, and on its basis, the employer must provide the entire package of requested documents to the dismissed employee within three days. The refusal of such a request may be motivated by the fact that the documents contain information that is not related to the employee’s work, which should not be disclosed. In this case, the employer is obliged to issue extracts from these documents, but he has no right to refuse to receive a copy of them in any form, and such a refusal will be considered an illegal action.
Sometimes, due to circumstances beyond the control of the employer, it is necessary to reduce the number of employees, however, despite the reasons for the need, the manager must follow the letter of the law and the norms stipulated by the current Labor Code and take care of the dismissed employees. Dismissal on the reduction of staff, compensation for the loss of source of income and position is both a right and a duty of every employer.
