How to fire someone due to redundancy. Dismissal due to staff reduction. Decision on restructuring or liquidation

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Last modified: January 2020

When faced with financial difficulties, an enterprise is forced to make unpopular decisions and carry out structural reorganization. One of such measures is often dismissal due to staff reduction, designed to optimize the number and professional composition of personnel. Having decided to take such a step, the employer must have a holistic understanding of the upcoming procedure, the rules for selecting candidates for calculation and the amounts of compensation due.

Regulatory rationale

The basic requirements for carrying out the procedure for reducing the number of employees are prescribed in the Labor Code:

• – the procedure for reporting future termination of relations;
• – on the procedure for assessing qualifications and selecting candidates for dismissal;
• – on financial support for released specialists.

If an enterprise conducts mass layoffs, then personnel officers and management need to take into account the norms of Government Decree No. 99 of 1993 and Federal Law No. 1032-1 of 1991, and also take into account the requirements of Art. 373 of the Labor Code on the motivated opinion of the trade union.

Step-by-step procedure for dismissal due to staff reduction

The decision to reduce the total number of employees at an enterprise or reduce individual structural divisions is too important to be made individually. This way out of the crisis is discussed with the co-founders or shareholders of the company. Signing the minutes of the meeting of co-owners gives rise to all subsequent actions:

1. The head of the company issues a layoff order.
2. A list of employees by name is generated. This must be done taking into account Articles 179, 261 and 373 of the Labor Code.
3. Sending a message to the employment authorities.
4. Delivery of notices of future termination of employment relations on the basis of clause 2) of Art. 81 Labor Code with a simultaneous listing of options for transfer to other positions.
5. Arranging translations for those who agreed to take the offered vacancies. Carrying out early dismissal if the parties have reached an agreement on this issue, Art. 180 TK.
6. Upon expiration of the notice period, a dismissal order is issued, and settlement and compensation payments for layoffs are issued.
7. On the last day of work, the personnel service is obliged to issue a work book, as well as all certificates and extracts requested by former employees.

The terms and set of measures to support workers are agreed upon with the trade union if the number of people being laid off falls under the concept of mass layoffs.

Reduction order

Based on the decision of the founders, the director at his disposal specifies the list of positions and the number of specialists to be laid off, as well as the planned date of termination of contracts. An updated staffing table is being preliminarily developed, on the basis of which options for transferring employees will be offered.

Notification of employment authorities

The notice period depends on the number of staff positions being cut. If 200 or more people are planned to be laid off within 60 days, then employment assistance services should know about this at least 90 days in advance.

No later than 2 months before the date of dismissal, the employment center must be informed about the professional composition of the released team members. Entrepreneurs can send information 14 days before the planned date.

Notification to employees

The most unpleasant and crucial moment in the entire reduction procedure is notifying candidates. Here you must strictly adhere to the basic rules:

• the notice must be written, personalized and detailed;
• the document must bear the personal signature of the employee and the date of actual delivery;
• It is better to carry out the familiarization in front of witnesses; if they refuse to sign, they will confirm this fact and sign the document.

The document itself also requires precise wording and should be as informative as possible for the employee:

• each notice must be personal (name, position and department indicated);
• there must be a reference to how and when the decision to cut staff was made;
• it is necessary to clarify that it is his position that is being reduced, and on what date the calculation is planned;
• it is necessary to report the presence/absence of vacancies of equal or lower qualifications;
• Usually, in the same notice, the employer indicates the possibility of early dismissal in accordance with Art. 180 TK;
• the date of preparation of the document and the signature of the responsible person are recorded;
• the notice is printed in 2 copies, the employer’s copy must bear the employee’s signature, and the calendar date of delivery must be noted.

It is advisable to leave space on the form for the employee’s comment. In this field, he has the right to provide new data that allows him to receive immunity from reduction (for example, to announce pregnancy).

The template for the official message about the upcoming reduction was not approved by law, so each company is free to supplement or change the order in which the information is presented.

What vacancies can be offered?

The law requires the employer to do everything possible to facilitate the employment of laid-off employees. This obligation will be considered fulfilled if:

• the candidate for dismissal was offered all available vacancies (from a managerial position to a cleaner), the main condition is that the new place must be suitable for qualifications and medical indications;
• the proposed position is fundamentally different from the previous one both in terms of responsibilities and salary, but is suitable for the employee based on additional education data (for example, if a specialist has two diplomas in different specialties);
• the list of vacancies is included in the notice or presented as a separate document against signature, but the employee responded with a written refusal or ignored it altogether.

An employee who agrees to the transfer loses the right to severance pay.

The transfer of a specialist who has agreed to fill the proposed vacancy can be made without waiting for the expiration of the deadline for notification of forced termination of employment.

How to issue an order and fill out work books for employees?

It makes no sense to issue a dismissal order in advance, since circumstances can change dramatically. It makes more sense to sign the document on the day of settlement or the day before.

Most often, the T-8 form is used, but since 2013 this has ceased to be mandatory (State Statistics Committee Resolution No. 1 of 2004 is now only advisory). It is more important to comply with the requirements for the content of the order; it must indicate:

• full details of the enterprise;
• date and place of drawing up the document;
• Full name and position of the employee;
• reason for dismissal and reference to the standard (in case of reduction of paragraph 1) or 2) of Art. 81 TK);
• grounds (data about the reduction order, notification, refusal of proposed transfers, etc.);
• signature of management or HR representative;
• a note of familiarization made by the employee himself or signatures of witnesses recording the fact of refusal.

Based on the signed order, the HR employee can make an entry in the work book and fill out the personal card of a former colleague. It is not recommended to show personal initiative in this case; Government Decree No. 225 of 2003 suggests the following procedure:

1. In column 1 you need to enter the record number according to the continuous numbering.
2. In column 2, note the date of actual calculation.
3. The verbatim wording from the order to terminate the employment contract is transferred to column 3.
4. In the 4th column enter the data of the basis order (name, number, date).

The entry is sealed with two signatures at once (those responsible for personnel records management and the owner of the record book), as well as the seal of the enterprise, clause 35 of the Rules for maintaining records.

Certain nuances of candidate selection

Concise information regarding the right to keep a job is set out only in Article 179 of the Labor Code. The basic rule for determining the value of each specialist is to compare qualifications and productivity. In order for the decision to be considered justified and objective, when making a choice between employees of the same department, you need to:

• assess the suitability of the position and specialization according to the educational document;
• analyze data on compliance with production standards, cases of disciplinary action, frequency of rewards;
• evaluate the quality and duration of work in the current quality;
• highlight the presence of unique professional abilities in each person, mastery of advanced skills, facts of advanced training in the profession;
• request the opinion of the trade union organization, Art. 373 TK;
• take into account the content of the collective agreement, which may contain additional evaluation criteria.

In addition, the employer will have to analyze some facts of the employees’ biography and the circumstances of their personal lives. It is important to immediately exclude from the separation list those whom the law classifies as preferential categories.

Which categories are not at risk of layoffs?

There are two options for the development of events: the staff and number are canceled completely as a result, or the team is reformed and the total number of employees is reduced. In the first case, no benefits matter: all employees will be fired, regardless of qualifications and circumstances.

If the company plans to continue operating, it is necessary to take into account a number of circumstances set out in Art. 261 Labor Codes, guaranteed to protect individual employees from layoffs:

• pregnant women employed under an open-ended contract;
• expectant mothers working under a fixed-term contract (until the end of pregnancy);
• mothers with children under 3 years of age;
• women who are independently raising a child with a disability (under 18 years of age) or a minor (under 14 years of age), this category also includes single male parents and sole legal representatives;
• the only breadwinners in a family with at least three children under 14 years of age and at least one of them under 3 years of age.

Nowhere in the legislation is there a rule that guarantees the right to work on a first come first calendar basis. The duration of cooperation with the company is taken into account, but is not decisive.

Does a disabled person or a pensioner have an advantage over others?

• an employee who is dependent on two or more disabled relatives;
• a person whose family no longer has employed or self-employed members;
• an employee who was previously injured in the same workplace;
• combat disabled;
• a part-time student sent to study on the initiative of the current employer.

Additional criteria can be introduced only privately, in a collective agreement, Art. 8 TK. However, at the federal level, neither a pensioner nor a disabled person who received a group on grounds unrelated to their profession has any privileges.

Employees on leave or absence due to illness cannot be made redundant until they return to work or are discharged.

What severance pay (compensation) is calculated?

When completing the dismissal of an employee due to staff reduction, it is necessary to make a full settlement with him no later than the last day of work. At this moment, the employer accrues and pays:

• balance of salary;
• accrues compensation for vacation or makes deduction for days used in advance;
• unconditional severance pay in the amount of average monthly earnings, Art. 139 TK.

However, the payment of compensation for workers affected by layoffs does not end there. Article 178 of the Labor Code provides for several more types of benefits, depending on the further development of the situation.

It should be taken into account that the maximum amount of financial support from the employer will not exceed the average payments for three months, since the accrual takes into account the amount that was unconditionally issued on the last day of work.

An example of calculating severance pay (compensation) for layoffs

Let’s assume that on March 18, 2019, engineer Sidorova I.A., who worked at the enterprise for more than a year and received a salary of 30,000 rubles, is fired due to layoffs. Provided that over the last 12 full months she has not been sick or gone on vacation, her full annual salary will be 360,000 rubles. Based on these data, the billing period is considered to be 03/01/2018 – 02/28/2019, and table for calculating settlement and benefits will look like this:

Magazine"Labor disputes" compiled a rating of five risks for employer companies when dismissing workers due to staff reduction.

Customer service manager Sergei Fedorov was fired due to a reduction in the organization's workforce. He considered that his employer fired him illegally and went to court. As the main arguments, the employee referred, firstly, to the inappropriateness of dismissal, since due to the nature of its activities the company could not do without a customer service manager. This means that the dismissal is imaginary. Secondly, the employee received notice of the planned layoff by mail, which is a violation of labor laws.

In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, employees are warned about dismissal due to staff reduction in person and against signature, which was not done in this case. Thirdly, the employer did not offer him all available vacancies, although the organization had temporarily vacant positions for female workers on maternity leave. For example, there was a vacant position for a quality control specialist, but it was offered to another layoff employee—a purchasing manager. According to the laid-off employee, he had a preferential right to occupy this position because he had a higher education, while the purchasing manager only had a secondary specialized education. And finally, fourthly, the employer, in violation of the requirements of the Law of the Russian Federation No. 1032-1 of April 19, 1991 “On Employment of the Population in the Russian Federation,” did not notify the employment service of the planned reduction, although it was obliged to do so. All this became the main arguments of the employee when going to court with demands for reinstatement at work, payment for forced absence time and compensation for moral damage caused by unlawful dismissal.

At first glance, the employee's arguments may seem convincing. However, let's find out whether the employer actually committed violations during dismissal that may lead to the recognition of his actions as illegal. Let's analyze each employee's argument and offer our own counterargument.

Arguments that employees most often use when challenging dismissal:

1. the employer had no objective reasons to reduce staff;
2. the employee was notified of dismissal by mail;
3. the employee was not offered temporarily vacant positions;
4. the employer did not take into account the employee’s preferential right to remain at work;
5. the employer did not notify the employment service of the planned reduction.

Risk one: the argument that staff reductions are unjustified

Supreme Court of the Russian Federation:

“The employer, for the purpose of effective economic activity and rational property management, independently, under his own responsibility, makes the necessary personnel decisions” (selection, placement, dismissal of personnel)” (clause 10 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

Constitutional Court of the Russian Federation:

“Making a decision to change the structure, staffing table, number of employees of an organization falls within the exclusive competence of the employer, who has the right to terminate an employment contract with an employee in connection with a reduction in the number or staff of employees of the organization, subject to compliance with the dismissal procedure established by the Labor Code of the Russian Federation” (definition of the Constitutional Court RF dated July 15, 2008 No. 413-О-О).

Courts of general jurisdiction also share the approach formulated by the highest judicial authorities.

Arbitrage practice

The employee filed a lawsuit demanding that the dismissal be declared illegal. In his opinion, the reduction was imaginary, since his position in the organization was needed. The court of first instance, satisfying the employee’s demands, indicated that there was no staff reduction in relation to the position held by the plaintiff, and in addition, the defendant did not provide the court with evidence of the need to reduce this position. However, the cassation court recognized this conclusion as unfounded, indicating the following. The court, checking the legality and validity of the dismissal of an employee under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, does not resolve the issue of the advisability of excluding a specific position from the staffing table, since this is within the competence of the employer, and therefore the court does not have the right to discuss the issue of the advisability of reducing staff. The fact of staff reduction was confirmed by orders from the general director, as well as staffing tables.
Based on this, the higher court overturned the decision of the court of first instance and refused to satisfy the employee’s claims (decision of the Moscow City Court dated September 09, 2010 in case No. 33-28514).

Similar conclusions are contained, in particular, in the rulings of the St. Petersburg City Court dated February 15, 2010 in case No. 33-1807/2010, the Moscow City Court dated July 1, 2010 in case No. 33-18716, etc.).

Thus, the employer does not need to justify the feasibility of the reduction. In court, he only needs to confirm that the staff reduction was real. To do this, it is necessary to submit orders for staff reduction, the previous staffing table and the current one. The absence in the latest version of the staffing table of the position, the reduction of which the employee is challenging, will be adequate evidence for the court.

Additional argument in favor of the company: employees do not have the right to appeal the employer’s decision to reduce headcount or staff

The workers appealed to the court to declare the order to reduce staff illegal. In their opinion, the company's board violated the established procedure for making such a decision. However, the court refused to satisfy the workers' demands. He pointed out that a person working under an employment contract with an organization is not given the right to appeal decisions of the collegial bodies of a legal entity, since only members of the board are given this right. The court emphasized that employees do not have the right to appeal the employer’s decision to carry out measures to reduce numbers or staff. He noted that reducing the number or staff of employees is an unconditional right of the employer, in the implementation of which he must fulfill the procedure defined by the Labor Code of the Russian Federation. In this case, employees can only check the facts of notification of their upcoming dismissal, offers of other vacant positions, but not the procedure for the employer to make a decision on layoffs (decision of the Sverdlovsk Regional Court dated 02.06.2009 in case No. 33-5558/2009).

Risk two: the employee was not notified of the upcoming staff reduction

According to clause 2 of the Rules for the provision of postal services (approved by Decree of the Government of the Russian Federation of April 15, 2005 No. 221), a postal item with a receipt notification is such an item, when submitted, the sender instructs the postal operator to inform him or the person specified by him when and to whom the postal item was delivered. Therefore, when delivering a postal item, the employee signs for its receipt. If the postal item contained a list of contents and a notification of delivery, then the employer can say that the employee was warned about the upcoming dismissal upon signature.

So, the employer can notify the employee of the upcoming layoff by mail, and this method of notification will comply with the law if two conditions are met: the employer has a document on which the employee has signed for receipt of the notification and notice of dismissal at least 2 months in advance. Please note that the calculation of the 2-month period does not begin from the moment the notice is sent, but from the moment the employee receives it.

If these conditions are met, then, most likely, the court will consider the dismissal procedure to have been followed.

Arbitrage practice

The company carried out organizational and staffing measures, as a result of which the position of deputy director for science was reduced. The employee who held this position did not agree with the dismissal and went to court with a demand to declare the dismissal illegal. In his opinion, there was no actual reduction, and the dismissal procedure was carried out in violation. In particular, the employer did not notify him of the upcoming layoff 2 months before his dismissal. However, the court sided with the company. He indicated that on February 18, 2010, a notice of upcoming dismissal was sent to the employee. On 04/16/2010 the employee was dismissed from 04/19/2010 under clause 2 of part 1 of art. 81 Labor Code of the Russian Federation. Referring to the employee’s explanations, the court noted that the notification was received by his daughter, who contacted him by phone on February 18, 2010 and informed him of the notification received, and also read out the list of proposed positions. This conclusion was also confirmed by the postal envelope, notification and duplicate notification received by the employee after his return from vacation on 03/26/2010, in which he confirmed the fact of familiarization with the notification and the list of vacant positions on 02/18/2010. Having assessed the evidence presented in its entirety, the court came to the conclusion that the plaintiff’s arguments regarding the employer’s violation of the warning period provided for by labor legislation about the upcoming layoff are unfounded. In this regard, the dismissal was recognized as legal (ruling of the Moscow Regional Court dated September 16, 2010 in case No. 33-18024).

It should be borne in mind that in the event of a conflict dismissal, the employee may not pick up the document at the post office. Therefore, if the employer has the resources, it makes sense to play it safe and deliver the notice of staff reduction to the employee personally (for example, send a courier or HR employee to his home). The main thing is that the laid-off employee signs for receipt of the notification. When the employee returns to work, the notification must be handed over to him again. At the same time, it is also important to keep all documents confirming the notification was sent to him.

When can an employer return a reduced position to the staffing table?

The legislation does not establish a time frame for returning an employee’s position to the staffing table. Since the employer determines the advisability of reducing staff, he also decides when he should expand the staff again. For example, if a reduction in staff was caused by financial difficulties, then after the economic situation normalizes, it will be legal to return the reduced position. However, the rapid return of such a position may raise suspicions that the reduction was in fact imaginary. And this automatically entails recognition of the dismissal as illegal. Therefore, if there is a need to immediately return a reduced unit, it is better to play it safe and introduce a position under a different name.

Risk three: the employee was not offered all vacant positions

• compliance with the employee’s qualifications (regardless of whether it is a lower-ranking or lower-paid position);
• no contraindications for health reasons for the employee.

In such a situation, the employer can be advised to use the following argument in court: the positions of employees on maternity leave were not offered to the employee, since they are not considered vacant, but are only temporarily available. This conclusion is confirmed by judicial practice.

Arbitrage practice

The employee was fired due to staff reduction. Considering the employer’s actions unlawful, she went to court with a demand to recognize the dismissal under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation is illegal. In her opinion, upon dismissal, she was not offered all positions; in particular, there were temporary vacancies for workers on maternity leave. However, the court indicated that the employer’s offer to an employee subject to dismissal of positions temporarily vacant due to long-term leave of employees, including in connection with child care, is not provided for by law. The court noted that these positions are not vacant in the sense of the provisions of Part 3 of Art. 81 of the Labor Code of the Russian Federation, since work in these positions is temporary (determination of the St. Petersburg City Court dated August 30, 2010 No. 33-11908).

At the same time, we note that the issue of offering temporary positions is not clear-cut. Some courts believe that such an obligation is still assigned to the employer. So, for example, the Moscow City Court in one of its decisions indicated that the Labor Code of the Russian Federation does not contain clarifications as to whether the proposed job should be permanent or temporary, while the employer is obliged to offer all available vacancies (determination of the Moscow City Court dated July 1, 2010 to case No. 33-19668/2010). However, most of the judicial practice on this issue is still in favor of the employer (see, for example: Review of cassation and supervisory practice in civil cases for 6 months of 2005 of the Perm Regional Court; rulings of the Voronezh Regional Court dated June 26, 2007 in case No. 33- 1629; Moscow City Court dated July 22, 2010 in case No. 33-20380, dated August 19, 2010 in case No. 33-26128, dated September 16, 2010 in case No. 33-29046, etc.).

Thus, in court, the company will most likely be able to refute the employee’s argument that the dismissal procedure was violated, since he was not offered temporarily free vacancies.

Dismissal may be considered illegal if vacancies at the company's head office were not offered

The employee appealed to the court with a demand to declare the dismissal due to a reduction in staff illegal. She indicated that when she left, she was not offered all the vacancies available in the company. The court agreed with this argument. He noted that when carrying out the procedure for dismissing employees, by virtue of the law, the employer is obliged to provide vacant positions in the same organization, including all its branches and structural units located in the area. At the same time, the employee worked at the Bank of Russia, which, together with its structural divisions, forms a single system. The court noted that only the Bank of Russia has the status of a legal entity, whose structure includes institutions throughout Russia, of which six are located only in St. Petersburg (where the employee worked). In this regard, the case was sent for a new consideration (decision of the Supreme Court of the Russian Federation dated June 25, 2009 No. 78-B09-12). Correctly compiling a list of vacant positions will help the employer avoid reinstatement of the employee. Offering another job is perhaps the most important stage of dismissing an employee due to staff reduction. To avoid mistakes, it is important to correctly draw up a list of positions for which an employee can apply. Let us remind you that the employer must offer not just all available vacancies, but only those that the employee can fill, taking into account his state of health and qualifications. At the same time, as the Supreme Court of the Russian Federation noted, it is necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience (clause 29 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). Job descriptions for each position will help the employer with this. They can be presented to the court to prove that the employee did not meet the requirements.

Risk four: upon dismissal, the employee’s preferential right to remain at work was not taken into account

Arbitrage practice

The employee was fired due to staff reduction. Considering the dismissal illegal, she went to court. In her opinion, the procedure for terminating an employment contract due to staff reduction was violated. The court of first instance agreed with the employee’s argument and indicated that the employer did not take into account her preferential right to remain at work. However, the higher court found this conclusion untenable. He noted that, by virtue of the provisions of Art. 179 of the Labor Code of the Russian Federation, when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications. Within the meaning of this article, it should be applied when there is a question of leaving one of several employees performing equal job duties at work. In this regard, the employee was denied reinstatement at work (ruling of the St. Petersburg City Court dated December 6, 2010 No. 16436).

One more point should be noted. In our case, the employee was indignant that the vacant position of a quality control specialist was offered not to him, but to another employee who had a secondary specialized education. In this case, the employer had the legal right to choose who to offer the vacant position first. Article 179 of the Labor Code of the Russian Federation talks about taking into account the preferential right to remain at work, but not about offering vacant positions. If the purchasing manager refused to move into the position, the employer would then have to offer it to the account manager. This follows from Part 3 of Art. 81 of the Labor Code of the Russian Federation, according to which the employer is obliged to offer the laid-off employee all available vacant positions.

Arbitrage practice

Due to job reduction, the employee was dismissed from the organization. Considering the employer's actions illegal, he went to court. In his opinion, the employer did not take into account his preferential right to remain unemployed and did not offer the vacancy available in the company. However, the court did not agree with this conclusion. He noted that the company had several employees whose positions were subject to reduction. The court noted that in such circumstances, when several laid-off employees apply for a vacant position, the right to select a specific employee to fill the existing vacant positions belongs to the employer. In this regard, the dismissal was recognized as legal (ruling of the Moscow City Court dated October 22, 2010 in case No. 33-30909).

Thus, when there are more laid-off workers than there are vacant positions in the company, the right to choose who to offer it to belongs to the employer. Since the purchasing manager agreed to fill the vacant position, there were no violations by the employer.

Three rules for painlessly dismissing an employee due to staff reduction

1. The employer can use additional criteria to assess labor productivity. When staffing is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications (Article 179 of the Labor Code of the Russian Federation). But the law does not stipulate exactly how to determine whose productivity and qualifications are higher. For these purposes, you can take into account, in particular, the period that the employee has worked in his specialty, his education and the number of incentives. If these indicators are the same for all candidates for dismissal, you must be guided by part 2 of this article, which contains a list of categories of citizens who have a preferential right to retain their jobs.
2. Dismissal of a pregnant employee is illegal, even if the employer did not know that she was expecting a child. Article 261 of the Labor Code of the Russian Federation prohibits the termination of an employment contract at the initiative of the employer with pregnant women (except in cases of liquidation of the company). In practice, it happens that an employee who has been informed of an upcoming layoff responds by announcing that she is pregnant. If such an employee is fired and the fact of pregnancy is confirmed, the court will reinstate her at work. Please note that similar situations may arise after the dismissal of an employee. For example, in the early stages of pregnancy, she herself may not know that she is expecting a child. Nevertheless, judicial practice shows that in such situations the legality of dismissal does not depend on whether the employer or employee knew about the pregnancy. In this situation, the employer can only be advised not to contact a legally savvy employee.
3. When a staff member is laid off, there is a risk of fraud with the work record book. A difficult situation can arise if an employee who has access to the work record books (for example, who is responsible for their storage) is dismissed. He can resign by taking his work book without signing for its receipt. Subsequently, he can make financial claims to his former employer, stating that he was not given a work book, and without it he cannot get a job. In this case, it is better for the employer to take preventive measures and create a duplicate of the lost work book. This will allow him to send the employee a notice of the need to appear for a work book. From the date of sending such notification, the employer is released from liability for the delay in issuing the work book.

Risk five: the employer did not notify the employment service about the employee’s dismissal

Arbitrage practice

The employee was dismissed from the organization due to a reduction in the position she occupied. Considering the dismissal illegal, she went to court. In her opinion, the employer committed numerous violations, including failing to notify the employment service 2 months in advance. However, the court did not find any violations leading to illegal dismissal. The court stated that the employer had the right to reduce her position. Moreover, the fact that the employer did not send information about the dismissed employee to the employment service cannot serve as a basis for her reinstatement at work, since the Labor Code 6s of the Russian Federation does not contain such an obligation (decision of the Moscow City Court dated December 8, 2010 in case No. 33- 38126).

Thus, the employer can declare in court that, despite the violation he committed, this does not affect the lawfulness of the dismissal. In addition, some courts examine how the violation affected the employee’s rights. After all, the point of notifying the employment service about the release of an employee is so that this body can quickly find a new job for the employee. If the employment service is unable to do this precisely because the employer did not inform about the employee’s dismissal in a timely manner, then we can talk about a violation of the employee’s rights. However, this should be a separate subject of proof and the employee must prove it.

Arbitrage practice

In connection with the employer’s decision to improve the organization of work and the rational use of personnel in functional departments in the company, the position of head of the logistics group was reduced. The employee who held this position considered such actions of the employer to be illegal and went to court with a demand to reinstate him at work. In his opinion, dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation is unlawful, since the procedures for terminating an employment contract were violated. In particular, the employment service was not notified of the upcoming dismissal. The first and second instances refused to satisfy the employee’s demands. The employee filed a supervisory complaint. However, the supervisory authority confirmed the legality of the dismissal. The court noted that the fact that the employer’s timely notification of the employment service about the upcoming reduction in staff at the enterprise and the possible termination of employment contracts cannot serve as a basis for canceling the appealed court decisions. The employee did not provide evidence of how this circumstance could or did result in a violation of his right to employment with the help of the employment service (decision of the Moscow City Court dated December 23, 2011 in case No. 4g/7-11008/11).

However, some courts approach this issue formally and check only the employer’s documented compliance with the procedure for dismissing the employee, and not how this affected the employee’s rights. In practice, there is a position according to which failure to notify the employment service, coupled with failure to notify the trade union, entails the illegality of dismissal.

Arbitrage practice

The first deputy head of the municipal administration was dismissed due to staff reduction. Disagreeing with this decision, he went to court. In court, the plaintiff explained that in fact there was no reduction, since functional responsibilities remained and were redistributed among other employees. In addition, the dismissal procedure was violated, since the trade union committee and the employment service were not notified of his dismissal 2 months in advance. The court agreed with the plaintiff's arguments. He noted that the reduction of the position of the first deputy head of the administration of the Dzerzhinsky district of Perm was carried out in accordance with the procedure established by local regulations of the city administration. However, the procedure for dismissing the employee was violated, since neither the trade union body nor the employment service body were notified in writing of his upcoming dismissal due to a reduction in his position 2 months in advance. In this regard, the dismissal was declared illegal (ruling of the Perm Regional Court dated 08/01/2011 in case No. 33-7697).

It is worth noting that previously the same court took the view that these violations themselves cannot be grounds for reinstating an employee at work. It is necessary to provide evidence that this affected the employee’s rights (see Review of cassation and supervisory practice in civil cases for 2006 of the Perm Regional Court).

Thus, failure to fulfill the employer’s obligation to notify the employment service significantly reduces the employer’s chances of winning a labor dispute. However, if the company manages to convince the judge that all other elements of the procedure were followed, and this violation did not in any way affect the employee’s rights, there is a possibility that the court will refuse to reinstate the employee. The employer can also argue its position by the fact that violation of this obligation does not entail reinstatement at work, since it is not provided for by the Labor Code of the Russian Federation.

E. Yu. Koroleva, Deputy General Director for Legal Affairs of the law firm "Alternative Resolution"

(detailed instructions)

One of the possibilities for terminating an employment contract with an employee by decision of the employer is dismissal caused by a reduction in staff or personnel. This lengthy procedure takes at least two months and must be provided with a package of mandatory documents so that it cannot subsequently be declared invalid in court.

What are we reducing – staff or numbers?

The law considers the downsizing procedure as a management tool for optimizing activities and gives the head of the organization (IP) two options to choose from:

1. or remove entire positions from the staffing table and carry out staff reductions, for example, completely eliminating the secretary’s position in the new schedule;
2. or reduce the number of employees provided for the positions and carry out a reduction in personnel - for example, by providing in the new schedule, instead of 4 units of the “secretary” position, only one.

Interestingly, judicial practice acquits the employer if the employee, when trying to challenge the dismissal, is guided by the argument that the reduction was unnecessary or even harmful to the company’s activities.

This is explained by the fact that the employer is not required by law to explain his management decisions. However, if the employer actually plans to return the reduced position to the staff after some time, so as not to raise suspicions about the validity of the procedure, it is worth adding the position under a different name to the staffing table.

Who can't be fired due to redundancy?

The Labor Code of the Russian Federation provides a certain circle of people with certain social guarantees, including the impossibility of their dismissal due to layoffs. Articles 261 and 264 contain a list of those with whom it is prohibited to sever employment relations by decision of the employer, this includes:

• pregnant women;
• women with children under three years of age;
• single mothers with minor children;
• sole breadwinners of families with a disabled child or several young children, etc.

When compiling a list of those being dismissed, the first thing you need to do is check whether the candidate for layoffs falls into the category of those prohibited from terminating the contract at the initiative of the employer. Such employees, after being laid off, will definitely be reinstated in their positions through the courts.

Step-by-step dismissal due to staff reduction

The correct procedure for carrying out the procedure for reducing staff or headcount is a guarantee that even if those dismissed go to court, the employer’s actions will be recognized as lawful. The law provides for a certain sequence and deadlines for the preparation of appropriate documents that are mandatory.

1. Reduction order number or staff - after making a decision to reduce the number, the manager must issue an order in any form, in which he will inform his subordinates about which positions or staff units are subject to reduction, appoint persons responsible for carrying out the procedure, and determine the approximate timing of the planned changes, but not earlier than in two months.
2. Order approving the new staffing table– is published to inform employees about the date from which the new staffing table will be in effect. In addition, it may contain information about the new number of employees and approval of the wage fund for the changed personnel structure.
3. New staffing– is created according to a unified standard and reflects the specific positions of employees, the number of staff units, their salaries and rates.
4. Private bussiness each candidate for dismissal and commission protocol based on the results of the analysis of the preferential right to remain at work - optional documents that are still worth having in case you have to prove the legality of the procedure in court. The content of personal files must contain information about the existence of a preemptive right and a confirmed level of qualifications that allows for a qualitative comparison of the employees’ work, and the protocol must contain conclusions about the impossibility or undesirability of dismissing other employees of the position being reduced.
5. Employee notification about a reduction in headcount or staff - is formed taking into account the list of all those dismissed no later than two months before the new staffing table comes into force.

Important! When laying off a temporary employee performing seasonal work, the notice period is reduced to seven calendar days, and for an employee with whom a fixed-term employment contract has been concluded for a period of less than two months - to three days.

Everyone who is listed by name in the list of notifications must put their signature on the document as proof of familiarization. If, as a result, the signature of any employee is missing, the package of documents must contain an act stating that this employee was notified by reading information about the layoff aloud to him. The act must mention the employee’s refusal to sign and provide written confirmation of three witnesses in whose presence the document was reviewed.

1. Employee consent to early termination employment contract - if, after notification of dismissal during a staff reduction, an employee decides to terminate the employment contract before the appointed date, he sends his consent to early dismissal to the employer in writing. He receives all payments due upon dismissal due to reduction; in addition, the employee is entitled to additional compensation in the form of average earnings for the period remaining before the date of entry into force of the new staffing table.
2. Notification of employment authorities and trade unions- the employment service must be notified two months in advance (in case of mass layoffs - three months in advance) in any case, and trade union organizations - if there are any.
3. Notice of offer to an employee of a vacant position– during the reduction procedure, employees are dismissed only if the employer does not have another position to which a transfer can be made or the employee does not agree to such a transfer. In this case, before offering another position, the health status and existing qualifications of the employee are taken into account, and the employee’s refusals must be received in writing. The employer is obliged to offer the layoffee all vacant positions corresponding to his qualification level and below it.

Important! Positions that require higher professional characteristics, occupied by part-time workers (even those working in a position for at most two to three hours a week), assigned to employees on long-term vacation, and also provided for in the staffing table in order to comply with the quota for disabled people, should not be offered to the dismissed person. recommended, as evidenced by judicial practice.

Offers of suitable vacancies must be made to the employee during the entire period from notice of retrenchment to actual termination, including the employee's last day of work. The time frame for an employee to consider proposed positions is also not specified in the law, so the process of proposals and refusals in the form of business correspondence between the employee and the employer’s representative can last from the first to the last day of the staff reduction procedure.

1. Order to terminate the employment contract– after all preliminary issues have been resolved, a dismissal order is drawn up, which must contain the date of the employee’s last day of work, as well as a link to the order to reduce staffing and a written consent for early dismissal, if any.
2. Entry in the work book and personal card– as a basis for terminating the employment contract, the employment contract must indicate a reference to clause 2, part 1, art. 81 Labor Code of the Russian Federation. After receiving the book in hand, the employee must sign in the work record, in the personal card and in the book for recording the movement of work books.
3. Payments– in addition to wages on the last day of work and compensation for unused vacation, the employee is entitled to receive severance pay in the amount of the employee’s average monthly earnings. In addition, for the next month, as a period for employment, the employee also retains the average salary. To receive the due amounts, the person dismissed after the expiration of the term must contact the former employer with an application and work record book confirming the absence of a new job. In exceptional cases, the employment service authorities can provide the former employee with earnings for the third month; this happens if the person contacted them within two weeks after dismissal, but they could not find him a job for the entire two months. Such payments accrued on a reduced basis are not subject to either wages or other mandatory wage charges.
4. Issuance of documents and certificates– in addition to the payment, the dismissed employee is given a certificate of the amount of earnings for the two calendar years preceding the year of termination of work along with the work book.
5. Notification of the military registration and enlistment office– if an employee subject to military registration has been dismissed, the military registration and enlistment office must be notified about this within two weeks.
6. Notification to the bailiff– if an employee was dismissed from whose salary amounts were withheld according to the writ of execution, it is necessary to inform the bailiff about this and, as soon as possible, give him the writ of execution with comments about what amounts and for what period were withheld from the employee.

If an employee sues for layoffs at work

After documenting the dismissal, the former employee can appeal the employer’s decision in court within a month. Moreover, upon application, the court may not reinstate the employee in his position, but provide him with payment of average earnings for the period of forced absence and change the wording of the reason for dismissal in the work book to “at his own request.”

In order for an employer to defend the legality of terminating an employment contract due to layoffs, he must provide evidence of the following:

• The reduction in staff or headcount was not fictitious. Proof that the procedure has taken place will be the presence of two staffing tables approved by the employer according to the unified T-3 form: the old one, which includes the position of the dismissed person, and the new one, which does not include this position.
• Before making the decision to dismiss, an analysis of the employees’ personal files was carried out and the preemptive right to remain in office was taken into account. The law does not provide for mandatory documents that can provide evidence of such an analysis. But in order for the dismissal procedure to be provided with all justifications, it is a good idea to have the personal files of candidates for dismissal and the protocol of the commission created by the manager specifically to analyze the preemptive right. However, this point is important only when there is a reduction in numbers, when someone is fired from a specific position, but someone remains in it. The right of advantage is exercised when comparing several employees of the same position, and if the entire position is reduced, then no comparison is made with employees of other categories.
• The obligation to offer all vacant positions has been fulfilled. Confirmation will be the employee's notification of the proposed transfers and his written refusals.
• The warning about the decision to reduce the employee's staff was carried out properly and on time. Proof is a written notice to the employee with his personal signature, provided on time.

Procedures for staff reduction and headcount reduction are very labor-intensive to complete and subsequently cause many labor disputes, but they are an accessible tool for optimizing staffing processes in a company. If the letter of the law is carefully followed in the procedure, employers should not have any problems.

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