The new staffing table reduced position. The procedure for reducing the position in the staffing table

Reducing the number of employees is one of effective ways cut costs or slow down production activities if the organization's product is no longer profitable. In the article we will tell you how to avoid mistakes when reducing the staff.

If the employer decides to reduce the number of employees, he needs to take into account all the nuances of this complex process. The mistakes made do not reduce, but, on the contrary, significantly increase the cost of personnel.

For example, the court may reinstate an employee at work and order the employer to pay him average earnings for the entire time of forced absenteeism (Article 394 Labor Code Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation), as well as to compensate for moral damage (Article 237 of the Labor Code of the Russian Federation). In this case, the employer is obliged to pay all legal expenses (Article 88 of the Civil Procedure Code of the Russian Federation).

In addition, if an employee applies for the protection of his rights to the labor inspectorate, if the reduction is incorrectly drawn up, the employer faces administrative liability under Art. 5.27 of the administrative offenses RF.

Consider typical mistakes that employers do when they make redundancies.

1. INCORRECTLY DEVELOPING THE NOTICE OF REDUCTION

When warning employees about layoffs, it is necessary to take into account all the requirements of the law, as well as established practice, in order to reduce the risk of disputes in the future. We recommend that you issue a notice of reduction in the number (staff) of employees. The more detailed the document is, the less questions, misunderstandings and irritation it will cause among employees (Example 1).

2. EMPLOYEES ARE NOT NOTIFIED OF REDUCTION OR HAVE BEEN NOTIFIED IN VIOLATIONS

An important nuance is that absolutely all laid-off workers must be warned about the reduction and on time.

According to the second part of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to writing warn employees against signature of their reduction at least two months before dismissal.

If the employee refuses to read the notice or sign for familiarization with it, then the employer will have to read the notice aloud to the employee and draw up an act in which two or three employees who were present at the time of familiarization must sign (Example 2).

However, there are exceptions to the notice period for an employee.

Several days notice. For example, if a fixed-term employment contract is concluded with an employee for a period of up to two months, then he must be warned about the reduction in writing at least three calendar days in advance (part two of article 292 of the Labor Code of the Russian Federation). An employee who is engaged in seasonal work must be notified in writing of the reduction at least seven calendar days(part two of article 296 of the Labor Code of the Russian Federation).

Notice of sickness and vacation. If the employee needs to be notified of the reduction, and he is on vacation or on sick leave, it is better to wait for him to go to work and hand the notice in person. But if this is a remote worker or the management requires to notify the employee despite the vacation?

In this case, you need to send a notice of reduction to all known addresses where the employee is located by a valuable letter with a list of attachments and a notice of receipt (Example 3). The date of notification is the date the employee receives the valuable letter.

If the employee is available on the phone, you should call him and tell him about the need to receive a notification. Moreover, this must be done on a speakerphone and in front of witnesses. The conversation must be recorded in an act (Example 4). Such an act speaks of the employer's good faith and confirms that he has done everything possible to notify the employee of the reduction.

3. DO NOT OFFER ALL SUITABLE JOBS

If there are vacancies in the organization, they should be offered to the reduced employee (if they are suitable for him in terms of qualifications and health status) as they appear within two months, while the notice period for dismissal due to reduction is in effect (part three of article 81 of the Labor Code of the Russian Federation) .

Often, the courts reinstate workers precisely because they were not offered all the vacancies. The courts carefully check whether the positions in the staff list and in the job offers coincide (see, for example, Appellate ruling Krasnoyarsk Regional Court dated February 2, 2015 in case No. 33-949 / 2015, A-9).

It is necessary to offer not only positions corresponding to the qualifications of the employee, but also subordinate ones.

QUESTION TO THE TOPIC

Do I need to offer a vacant higher position?

If you know for sure that the qualifications are insufficient, you do not need to offer this vacancy (see the Appeal ruling of the Moscow City Court dated March 30, 2015 in case No. 33-10408 / 2015).

But if it is not known for sure whether the employee can hold a higher position (perhaps he passed extra education or he has experience that is not reflected in the work book), the risk of disputes increases. To do this, we propose in the notice of reduction to report on qualification documents unknown to the employer (see Example 1).

Thus, you need to ensure that there are no extra vacancies in the staff list (just in case). All vacancies that are not yet searched should be excluded.

An employer is obliged to offer vacancies only in a given locality, unless otherwise provided by the labor or collective agreement (see the Appeal ruling of the Moscow City Court of December 24, 2012 in case No. 11-25754).

It should be noted that the position held by a woman on maternity leave is not considered vacant in the opinion of most courts (see, for example, Ruling of the Moscow City Court dated May 29, 2014 No. 4g / 8-3516). This position is temporarily vacant - after all, a woman can return, and we do not know when - in three months or in three years.

4. REDUCING "PROTECTED" WORKERS

Although defining organizational structure and staffing - the right of the employer, the law protects certain categories of workers who need state support. "Protected" workers include:

Pregnant woman (part one of article 261 of the Labor Code of the Russian Federation);

A woman who has a child under the age of three (part four of article 261 of the Labor Code of the Russian Federation);

A single mother raising a child under 14 or a disabled child under 18 (or a person raising such a child without a mother) (part four of article 261 of the Labor Code of the Russian Federation). According to paragraph 28 of the resolution of the Plenum Supreme Court RF dated January 28, 2014 No. 1, a single mother is considered a woman who brings up her children (relative or adopted) and is engaged in their development independently, without a father. In particular, if the father:

Died, recognized as missing (you need to ask the employee for a death certificate, a corresponding court decision);

Deprived of parental rights, limited in parental rights (corresponding court decision);

Recognized as incapable (partially incapacitated) or for health reasons cannot personally raise and support a child (court decision or certificates, for example, on disability);

Serving a sentence in institutions that carry out punishment in the form of deprivation of liberty (corresponding certificate);

Avoids raising children or protecting their rights and interests. It's about about divorced women who applied for the recovery of alimony to the court and the bailiff service, but, despite this, it was not possible to recover the alimony (certificate from the bailiff service that it was not possible to recover the alimony);

Other situations (for example, when the paternity of the child is not established and there is a dash in the birth certificate);

A parent, if he is the sole breadwinner of a child under three years of age or a disabled child under 18 years of age in a family of three or more children under 14 years of age and at the same time the other parent (representative of the child) is not in an employment relationship (part four of article 261 of the Labor Code of the Russian Federation) .

To reduce the risks of litigation, it is better not to lay off such workers.

Also note that employees under the age of 18 can be fired due to layoffs only with the consent of the labor inspectorate and the commission on minors (Article 269 of the Labor Code of the Russian Federation).

In addition, if an employee is a member of a trade union, he can be fired only in agreement with the primary trade union organization (part two, Articles 82, 373 of the Labor Code of the Russian Federation).

And finally, do not dismiss an employee during his period of temporary disability and during his vacation (part six of article 81 of the Labor Code of the Russian Federation, subparagraph “a” of paragraph 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

5. THE PRIORITY RIGHT TO STAY AT WORK IS NOT ACCOUNTED

With such a problem, when reducing, you can encounter if there are several positions of the same name in the staffing table. For example, there are three sales managers in a department, and only one needs to be cut. In this case, the first part of Art. 179 of the Labor Code of the Russian Federation requires that the employer, during the reduction, leave at work workers with higher labor productivity and qualifications.

Qualifications can be checked against the document on education and work book, however, the assessment of labor productivity will require certain efforts from the employer.

How to evaluate labor productivity? It is not difficult to assess the productivity of working personnel - it is enough to find out whether employees comply with labor standards (time and output). The situation is much more complicated when it comes to evaluating the productivity of knowledge workers. Here are some hints:

1. If the organization conducts an annual assessment of personnel, we recommend that you attach its results. The results of the attestation, if any, will also be useful.

2. If the organization has established bonus indicators, the productivity of employees can be assessed by the size and frequency of bonuses accrued to them. You can also take into account the regular execution additional work(for example, part-time or by special order). We recommend to evaluate the work discipline of the employee. If discipline is low or there are comments, reprimands, then such an employee has no preemptive right.

How to document performance appraisal. The first step is to issue an order to create a commission to determine the pre-emptive right to leave at work. The order must contain the following provisions:

The results of the assessment must be indicated in the minutes of the meeting of the special commission. In court, the protocol is proof that the employer has taken into account the preferential rights of employees. Tables should be attached to the protocol with an assessment of the fulfillment by employees of production or service standards, plans, instructions, etc. (see table).

If the productivity and qualifications of workers in the same positions are approximately equal, you should go further and provide preemptive right the following categories (part two of article 179 of the Labor Code of the Russian Federation):

Family with two or more dependents;

Persons in whose family there are no working family members;

Employees who, while working in the organization, received an industrial injury or occupational disease;

Disabled people of the Great Patriotic War and military operations;

Employees who improve their skills on the job in the direction of the employer;

Such employees should be asked to provide supporting documents. For example, an employee with two or more children must provide birth certificates, as well as a passport with registration confirming residence with children; combat invalid - certificate.

6. DO NOT NOTIFY THE EMPLOYMENT SERVICE AND THE TRADE UNION

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032 - 1 "On employment in Russian Federation”(as amended on 07/29/2017, hereinafter - Law No. 1032-1) to reduce the number or staff, even if only one position or one employee is reduced, the employment service must be notified no later than two months in advance. If the reduction is massive - three months before the start of the reduction. Each region has its own form of notification. It should be specified on the websites of the employment service of the regions. Let's give an example of a notification for Moscow (Example 5).

The criterion of mass character is determined by sectoral, territorial or regional agreements between trade unions and employers (part one, article 82 of the Labor Code of the Russian Federation).

If these agreements are not applicable to a particular employer, paragraph 1 of the Regulations on the organization of work to promote employment in conditions of mass dismissal (approved by Government Decree No. 99 of February 5, 1993) should be followed.

According to the first part of Art. 82 of the Labor Code of the Russian Federation, if the organization has a trade union, it must be notified within the same time frame (Example 6).

7. PERSONNEL DOCUMENTS ARE ISSUED WITH ERRORS

Design errors personnel documents can lead to fines and even reinstatement of the employee. To avoid them, it is necessary to carefully draw up his dismissal on the last day of work (paragraph two of the first part of Article 84.1 of the Labor Code of the Russian Federation, clause 35 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

Below we list the actions of the employer on the last working day of the dismissed employee.

With the order of the employee must be familiarized with the signature. In case of refusal to familiarize, it is necessary to draw up an appropriate act, which must be signed by two or three employees (Example 8).

We make a note-calculation. A note-calculation is a mandatory document for publication and is sent to the accounting department on the day the employee is dismissed. It is issued either in the unified form No. T-61 or in the form approved by the organization. In it, the personnel officer reflects the number of days of unused or used leave in advance (Example 9).
We make an entry in a personal card. An entry must be made about the dismissal of an employee in section XI of the personal card of form No. T-2, with which the employee must be familiarized against signature (Example 10).

Issue a work book. On the day of dismissal, the employee must be given a work book with a record of dismissal (Article 84.1 of the Labor Code of the Russian Federation) against signature in the work book record book (Example 11).

If an employee refuses to receive a work book, an act must be drawn up about this signed by two or three employees (Example 12).

If the employee did not appear for the work book, it is necessary to send him a notification before the end of the working day about the need to pick up the work book (Example 13) or give written consent in any form to send it by mail (part six of article 84.1 of the Labor Code of the Russian Federation). It is better to send a notification to all known addresses of the employee in order to increase the likelihood of receiving it.

We issue certificates. Upon dismissal, the employer is also obliged to issue to the employee:

A certificate of the amount of his earnings, on which accrued insurance premiums to the Social Insurance Fund (part 2 of article 4.1 federal law dated December 29, 2006 No. 255-FZ “On mandatory social insurance in case of temporary disability and in connection with motherhood”);

Certificate with information on accrued and paid insurance premiums in Pension Fund Russian Federation (Article 11 of Federal Law No. 27-FZ of April 1, 1996 “On Individual (Personalized) Accounting in the Compulsory Pension Insurance System”).

8. LEAVING THE STAFF

The position of the dismissed employee must be excluded from the staff list on the day after his dismissal. If an employee is dismissed on September 30, then from October 1 this position should not be on the staff list.

At the same time, it is necessary to refrain from introducing the same or similar position for several months (see the Appeal ruling of the Novosibirsk Regional Court dated 05.05.2015 in case No. 33-3752/2015).

9. THE EMPLOYEE IS WRONGLY ESTIMATED

On the day of dismissal, the employer must pay employees severance pay in the amount of average monthly earnings, wages and compensation for unused vacation.

Size wages is determined in the amount that is due to the employee for the time actually worked in a given month. Compensation for unused vacation must be calculated in accordance with Art. 121 of the Labor Code of the Russian Federation.

If on the last day of work the employee is not paid off, the employer must pay the employee interest under Art. 236 of the Labor Code of the Russian Federation in the amount of not less than 1/150 of the key rate in force at that time Central Bank RF for each day of delay, regardless of the fault of the employer. The employer is obliged to pay the average earnings for the second and third months if the employee has not found a job.

To receive benefits for the second month, the employee will need to provide the employer with an identity card, an original work book without work records after the date of reduction.

If an employee does not get a job and wants to receive severance pay for the third month, he must comply with the following conditions:

Within two weeks after dismissal, register with the employment authority as unemployed;

Be unemployed by this employment agency within the third month after dismissal;

Provide the employer with the decision of the employment authority on the payment of the average monthly salary to the employee for the third month.

If the employment service makes such a decision, the benefit will have to be paid for the third month.

Note: if the organization or its branches are located in the regions of the Far North or areas equivalent to them, then in accordance with Art. 318 of the Labor Code of the Russian Federation, the average earnings of laid-off workers remain for up to three months. In exceptional cases - up to six months (by decision of the employment service).

In conclusion, we present step by step algorithm reduction in the number of employees (flowchart).

The company is a living organism, therefore, it needs to adjust the schedule and work schedule. A document such as a staffing table is no exception. The need to amend it (rename the position, add or reduce) is due to a number of reasons: reorganization of the structure, changes in the wage fund, modernization or decline in production. It has its own procedure and type specimens orders.

Staffing - the basis of the enterprise

It is the introduction of changes in the staffing table that is the starting point for the implementation of specific transformations in the enterprise. We are talking not only about changes in the work schedule, because with any changes in the system it is very important to take into account the productivity and effectiveness of employees - these indicators should not be lower than the previous ones for the same period.

The management of the company can avoid unpleasant situations, in particular labor disputes, claims from regulatory authorities, if it takes responsibility for the process of registration of changes in the state.

When the staffing table changes, an appropriate order is issued.

On what grounds are staffing changes

Changes to the staffing table are made in the following cases:

Transformation (modification) of the company, which requires the exclusion of certain positions or the introduction of new ones.
Downsizing when there is a need to reduce the number of full-time employees.
Business development that involves the recruitment of new employees.
Raising or lowering the payroll.
Reorganization processes in the enterprise.
Correction of job titles.

This list is not limited to the cases presented, but these are the most common in practice.

Are there exceptions and limitations under the law

The regulatory requirements of the Labor Code relate to the reasons why the quality and size of the staff may be changed.

With regard to restrictions, if they do not contradict the basic requirements statutory documents enterprises (type of activity, sphere of production of goods or provision of services, manufacturing technology, etc.), each enterprise has the right to make any adjustments and changes in terms of the situation.

Who should draw up the staffing table and make changes

The legislation does not clearly indicate who should be in charge of staffing. One way or another to participate in the configuration personnel everyone can. Even ordinary employees have the right to file petitions for the need to abolish and introduce rates, transfer to another position. Technically, the staffing table is the one on whom the management has entrusted such a duty. Usually this is a personnel officer, economist or accountant. In small enterprises, the founder himself is in charge of staffing.

How to make changes to the staffing table

The procedure and execution of the order will differ slightly depending on the reason for which the changes are made.

Salary increase and decrease

The primary basis for bringing the increase in the salaries of company employees into the legal field is the issuance of an appropriate order, which should indicate:

The list of positions for which the salary increase will be made.
The size of the new salaries (specifically for each position).
The exact date the changes were made.

Both sides labor relations sign an agreement to the employment contract regarding the increase in salary, on the basis of which an order is issued. Many managers use unified form, but labor legislation allows this document to be drawn up in a free form acceptable for a given enterprise, taking into account its specifics.

All issues related to payment are one of the foundations of the employment relationship. The employer must attach great importance to this, especially in terms of fulfilling legal requirements. Based on this, after documentation salary increases for staff, appropriate adjustments should be made to labor contract. Those affected by the changes must be familiarized with the order, confirming this with their signature.

In the case of a salary reduction, of course, the relations of the subjects become much more complicated. It may be legal to reduce pay without the consent of the employee in cases caused by specific technological or economic reasons. Although this is not a comforting factor for an employee to be laid off.

It is not uncommon for a manager to behave incorrectly, suggesting in a forced tone to conclude an additional employment contract to reduce wages. Moreover, he does this by exceeding his powers and taking advantage of his official position. If the employee does not agree, the manager allows himself to threaten worsening working conditions or even dismissal. Such cases are clearly regarded as a violation of labor laws and, of course, are the reason for filing a lawsuit in court. Such moments exacerbate labor disputes and bring them to a level where it is impossible to deal with them otherwise.

Company reorganization and staff optimization: entry, exit and replacement of positions

During the period of reorganization, new positions are introduced into the staff list and those that are not of interest to the enterprise are excluded. With new positions, the issue is understandable, because there are enough people who want to take them at present. But with reduced or out-of-staff workers, everything is much more complicated.

Downsizing and liquidation of departments

The administration of the enterprise is obliged to prepare a memo on the upcoming reduction two months before the event. A dismissed employee is paid a severance pay - the average monthly salary within two months from the moment of termination of the employment relationship.

In the order to reduce the number of the labor collective, the following data must be indicated:

List of cut positions.
The exact date of the cut.

A very important point that employers should take into account are the categories of employees that are not subject to reduction.

When renaming positions, the manager must also notify the employee in writing 2 months before the changes are made (Article 74 of the Labor Code of the Russian Federation).

The presence of vacancies is the most painless way out in case of reduction, because the employer will not have to experience unnecessary negative emotions when he is forced to deprive a person of work. If unoccupied positions fall under the reduction, an act is drawn up on the basis of which changes are made.

Video: legal advice on redundancy dismissal; categories of persons who cannot be reduced

Introduction of new staff units and departments

The order on the introduction of new positions contains the following information:

Job title. If a whole department is entered, its name and a list of positions are indicated.
The exact date the change will take effect.

In this case, the moment of issuing the order coincides with the moment of regular innovations. This is possible because these changes do not affect the fate of the employees of the enterprise. First of all, personnel officers who will be involved in the development of job descriptions are introduced to innovations.

Procedure for renaming a position

A new job title often occurs in the field of labor relations, in production and administrative processes. For example, we can recall that in the recent past, the position of a merchandiser was very common in trade. Now such an interpretation is unlikely to remain, it has been replaced by the concept of "manager".

So, when renaming a position, the change occurs, as they say, without unnecessary movements. An order is issued according to the same principle as with the introduction of a new staff unit, with the only difference being that the document must indicate the previous title of the position, and then the new one.

In a situation where an employee works in a position, the name change is carried out with his knowledge and consent. An experienced leader will always find a common language with subordinates and will be able to clearly explain the reason for the changes and thoroughly argue. If the transformations are caused by serious technological and organizational factors, the employer has the right to make changes even without the consent of the employee (Article 74 of the Labor Code of the Russian Federation). Further, both parties sign an agreement regarding the modification of the title of the position. After that, an appropriate order is issued. The personnel officer enters information into the personal card and work book of the employee.

Methodology for making changes to the staffing table

Before making changes, the head of the department or other structural unit prepares a memorandum addressed to the head of the company with a detailed justification and economic calculations.

Rules for drawing up an order

The order is issued on the basis of Art. 74 of the Labor Code of the Russian Federation, as a rule, it is called “On Amendments to the Staff List” or “On Partial ...”. The ascertaining part is filled with arguments at the level of the given enterprise, the nuances of the changes are specified.

On the letterhead, the head issues an order. Text this document consists of two parts: statement and order. The first part is the legal basis and reason, the second is specific changes indicating the deadlines and those responsible for execution.

If the company is complex structure with a large staff, job titles may be repeated. Therefore, in the order it is necessary to indicate not only the position, but also a specific structural unit.

Employee notification

The content of the order of the document must be communicated to all staff members who are affected by the innovation. They should carefully read it, take note and sign on the back.

If an employee needs an extract from the schedule, it is issued on the basis of Art. 62 of the Labor Code of the Russian Federation. The extract contains information about payments for a specific position. Guided by Art. 88 of the Labor Code of the Russian Federation, information on the salaries of other employees is not indicated in the extract.

When is a new schedule approved?

With partial, minor corrections, changes are made to separate columns of the current document. With significant modifications, it becomes necessary to develop a new schedule of staff.

Usually staffing is compiled for a period of one year. If you need to rename a position or introduce a new one in the middle of the year, changes are made to the staffing table by order. The number of repeated changes is not limited by law. And it will be possible to draw up a new staffing table for next year.

Rationale for changes: memo

The management of the enterprise is preparing a service letter addressed to employees. It contains a respectful address and a detailed explanation of the need for changes, especially when it comes to downsizing. The note suggests ways out of the situation. This may be an offer to take another position.

If the upcoming reduction is caused by serious technological circumstances, the employer has the right to reduce the position without the consent of the employee. However, this fact does not exclude the requirement that the head write memo. In this case, he must show respect and tact, especially in relation to employees who conscientiously performed their duties. There is a human factor here, when an employee receives a moral injury due to the loss of a job. It is the manifestation of delicacy that will not allow aggravating the already difficult situation of a person, which means it will not cause protest in him and will not force him to take an extreme step - filing a lawsuit.

Changes to the staffing table must first of all be justified. The information must be brought to the knowledge of employees, and the person who is entrusted with the responsibility of performing control must report on the results of the work done. The employer must have the basics of legal literacy and avoid unnecessary labor disputes, because there are more vulnerable categories of workers who are insured against falling into the redundant list.

We live in an unstable and constantly changing world. change fast modern technologies, and the economic environment is also changing rapidly, which significantly affects the work of enterprises. Some of them grow and develop by opening new branches and departments. Others - due to the introduction of new, more advanced technologies, which leads to a decrease in the number of jobs, the release of individual positions. The consequence of this is the reduction of the position in the staffing table or the number of staff units.

Reduction of positions in the staffing table is carried out with a decrease in jobs

Of course, not all employees will agree with the dismissal, so the employer must ensure that the administration strictly observes step by step procedure approval of a new staffing table with a reduction in staff and the exclusion of positions from the old one.

Downsizing or downsizing

One of the grounds for the possibility of terminating an employment contract initiated by the employer is a change in the staffing table and the corresponding reduction in headcount and staff. Prior to the downsizing, management and human resources must determine whether only the number or staff of posts will be reduced.

Downsizing is a reduction in the number of staff units for a specific position. Downsizing is the complete removal of a position from the staffing table.

Compliance with the dismissal procedure

When making a change in the staffing table with a reduction in employees, it is very important to draw up documents and carry out all procedures correctly. The process of reducing the position (positions) includes several activities:

Establishment of a redundancy commission

After the decision on the need for reduction is required to involve the company's public in this process. At the same time, by order of the director, a commission is created, consisting of employees of the enterprise. This commission determines the legitimacy of the job reduction and whether specific employees have a preferential right to be left in the team. The decision taken by the commission is documented in a protocol.

Article 179 of the Labor Code lists the categories of employees who have a priority right over other employees to keep them at work. These include:

employees whose families have at least two disabled members)
workers whose families do not have other persons with earnings)
employees who have been injured at this enterprise, any occupational disease)
invalids of the Second World War and other military operations)
employees who improve their skills on the job.

In addition, article 261 of the Labor Code of the Russian Federation prohibits dismissal due to job reduction:

women with children under the age of 3)
pregnant women)
single mothers with children under 14 (or disabled children under 18))
other persons carrying out the upbringing of such children in the absence of the mother.

Reduction Order

First, the head of the enterprise issues an order stating which positions are subject to reduction. Then an order must be issued to approve the staffing table in connection with the reduction of employees.

Notifying employees and offering vacancies

Employees must be notified of a subsequent dismissal, which causes a change in staffing during staff reductions, at least two months before the dismissal itself. Moreover, this should be done individually and under the signature. If the employee refuses to sign for the receipt of the notice, then with two or three witnesses it is necessary to draw up an act confirming the fact of the notice of dismissal.

Employees should be offered available vacancies at the enterprise. This is done not once, but periodically from the moment of the notice of dismissal. You need to offer employees all the vacancies that may appear in the company after the announcement of the reduction in positions. Usually, a notice of a vacancy in the staffing table during staff reduction occurs three times:

when reporting a job cut,
one month after that,
on the penultimate working day.

Employees need to be offered not only positions and vacancies that correspond to their current qualifications, but also those that are lower or less paid. The employer must offer all vacancies that meet these requirements and are located in this area. Jobs from other areas should be offered only if it is stipulated in the employment or collective agreement.

When a change in the staffing table is carried out with a reduction in staff and headcount, the company administration and the employer should not place an advertisement for the search for new employees for these particular positions. In addition, it is desirable not to introduce these positions back into the staff list for at least six months after the reduction. Otherwise, the laid-off employee can prove in court that there was no actual reduction in staff, challenge the dismissal and return to work.

Temporary vacancies

A vacancy is a position that is provided according to the staffing table and for the performance of work for which an employment contract was not concluded. Based on this, the position employed by an employee who are on long leave (for pregnancy, childbirth, childcare) or transferred to another position temporarily, is not vacant. Consequently, the employer, when reducing, is obliged to offer permanent vacancies to the reduced employees.

At the same time, there is no direct prohibition on the offer of temporary vacancies in the legislation. When transferring employees from a reduced position to a position vacant during the absence of a permanent employee, a fixed-term employment contract must be concluded with them.

Employment Service Notice

The employer is not obliged to introduce a new staffing table when reducing the number and staff

The employer must, in writing and no later than two months before the dismissal, which causes the exclusion of the position from the staff list during reduction, notify the employment service about this. If the reduction of a position in the company's staff leads to mass layoffs, then the employment service must be notified three months in advance.

The message to the employment service authorities must contain the position, profession, specialty and qualification requirements. Also, for each individual employee, the terms of remuneration are reported.

Reduction payments

The exclusion of a position from the state involves the payment of compensation to dismissed employees who did not agree to vacancies and did not remain at the enterprise in other positions. These employees are paid a severance pay equal to their average monthly earnings. The same amounts are paid monthly during the search for a job by a dismissed person (no more than 2 months, and in northern regions- no more than 3). Termination employment contracts confirmed by the issued order, work books entries should be made about "dismissal to reduce the staff of the enterprise's employees."

On the last working day, the final settlement is made with the dismissed employee, a work book is issued. The employee, whose position has been reduced from the staff list, builds all his subsequent relationships exclusively with territorial authority employment services. The responsibilities of this organization include the employment of citizens, the payment of unemployment benefits to them, the provision of temporary disability benefits, the possibility of retraining, and so on.

Leaving before two months

If an employee who has fallen into the category of layoffs expresses a desire to quit before two months after notification of the reduction, then there are two options for this:

The employee writes consent to dismissal ahead of schedule. This provides for the payment of additional compensation. Its size is determined by the time remaining before the expiration of the two-month period.
The employee is leaving own will. In this case, he is not entitled to any compensation from the employer.

Preparation of documents for the court

The exclusion of a position from the staff list during a reduction has certain consequences

An employee who does not agree with the decision made by the administration can challenge the legality of excluding a position from the staff list on the day the employee is dismissed by contacting the judicial authorities.

First of all, the downsizing must take place in reality. This fact should be confirmed by the staffing table submitted to the court before the reduction procedure and the new staffing table when the number and staff are reduced after its completion.

At the same time, the law does not oblige the employer to introduce a new staffing table when carrying out an action to reduce the number / staff. It is legally just an order to make changes to the existing one.

Arbitrage practice implies that the right to determine the staff of positions and the number of employees belongs to the administration and the employer. However, despite the absence of a requirement for the employer to prove the validity decision on the reduction of posts from the staff list, it is still recommended to draw up a feasibility study. The existence of this document will strengthen the employer's position in court and refute the employee's arguments about the far-fetchedness of reducing his position.

HR records management

Keywords:

1 -1

When a new staffing table is drawn up, when reducing staff, it is worth considering all the rules of a legislative and labor nature. The scheduling time is considered to be the development of a reduction plan. Introduced new type regular distribution after the completion of the reduction procedure. The staffing table has a number of conditions that the manager will need to fulfill.

Procedure

If there are grounds for the reduction of staff units, the head makes a decision, which is considered the beginning of the development of a reduction plan.

Important! The decision must be based on mandatory grounds, which allow you to start the reduction procedure due to various factors. An employer cannot lay off workers unless there are good enough reasons.

Whole procedure:

the presence of factors and making a decision on them on staff reduction;
the creation of a special commission that develops a reduction plan, including the development of a new staffing table based on initial factors;
issuing a reduction order and notifying all stakeholders and organizations;
carrying out staff reductions in accordance with the plan;
transfer or dismissal of employees with a full calculation.

The new staffing table is formed during the creation of the plan, that is, all positions that may already be illiquid are excluded from here. It is worth considering that it is impossible to introduce the same positions in the new staffing table that are not being reduced.

Important! Before the moment when the schedule of the new type was fully developed, it is impossible to dismiss employees. For this reason, a schedule is being developed at a preliminary stage before notification of all organizations and individuals begins.

A new staffing schedule is being developed by a commission that is creating a reduction plan based on the received data on the need to optimize or increase efficiency. The commission must include the employer himself and the head of the personnel department. When forming the schedule, it is necessary to take into account all the features of the employees who hold positions. Some positions cannot be excluded. These options include jobs for maternity workers and other vacationers, as well as preferential categories.

The staffing table is the fundamental document for labor processes. For this reason, it must be created taking into account all the rules and features.

Features of the new staffing

The staffing table is compiled on the basis of several documents and factors. List of influencing elements:

old schedule;
reduction plan;
optimization and efficiency improvement measures;
a real reduction in a number of positions, that is, if a position has been reduced, then it cannot be reintroduced;
a list of non-reducible positions, depending on the location of preferential categories of employees in them.

In fact, when scheduling a new character, several rules must be followed:

the schedule includes all non-reducible positions and excludes low-performing positions, which are determined during the development of the plan;
new staff units are introduced only if there are grounds for this;
units cannot be excluded from the schedule for the reduction of which there are no sufficient grounds.

Important! When notifying a trade union organization or any body, such as an elected employee, it will be necessary to provide not only a reduction plan, but also a developed staffing table that will allow employees to work more efficiently. The union is already checking the validity of the reduction in staff and all units that were excluded from the new sample.

For any non-compliance with the rules or labor standards, the employer can be held liable through the court or labor inspectorate. Both the laid-off worker and the trade union can file a lawsuit with the grounds of illegality and violations of labor rights. Only in court, the employer will have to prove the legitimacy of the procedure and the validity of the introduction of the schedule. When making redundancies, the manager is not required to provide a redundancy plan to his employees.

If the fault of the employer is proven, the reduced positions will be restored, even if there is a new staffing table. It is worth considering that with an unreasonable reduction, the new staffing table may be canceled completely. For this reason, the commission, when developing a plan, must first take into account all labor rights employees.

Schedule introduction

The development of a new staffing table is based on the plan during preliminary stage abbreviations. Only after the schedule has been drawn up and certified, the notification of employees about the reduction begins in accordance with the issued order.

The order includes all positions that are excluded from the new version of the staffing list.

The date of introduction of the schedule of a new nature is indicated in the order that regulates the period of reduction, that is, if employees are already completely reduced on the 1st day, then the schedule is introduced during this period. Before the due date, it is not required to enter it, since there are still unreduced positions that are not included in the new document.

The introduction of a new staffing table ahead of schedule is considered a violation. All available vacancies under the new option must be offered at the stage of waiting for the end date of the reduction. This applies to all positions, including part-time. The provision of a new workplace is carried out strictly according to the presence of a pre-emptive right, which is taken into account even at the stage of developing the plan.

It is worth considering that the new staffing table is an official document, therefore, after its creation, it is certified by the signature of the head and the seal of the organization.

The new staffing table is being prepared in conjunction with the downsizing plan. There are several rules that an employer must comply with. The schedule should be created by a special commission, which will take into account all the features of the positions and the employees who are in them. The downsizing process cannot begin until a new schedule has been created, as all vacancies of the new type must be given to employees on a first-come basis.

If necessary, the employer may decide to reduce the number or staff units. To avoid litigation with dismissed employees, a certain reduction procedure must be followed.

Maria Blagovolina,
Senior Associate at Allen & Overy

Certain categories of employees who are subject to social protection and which should not be reduced: 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) (Article 261 of the Labor Code of the Russian Federation). It is also impossible to reduce an employee during his disability or vacation (part 6 of article 81 of the Labor Code of the Russian Federation)

Can I offer temporary vacancies?

A vacancy is a position provided for in the staffing table of the company; an employment contract has not been concluded for the performance of work on it. That is, a position is not considered vacant if it is actually occupied by an employee, but he is on maternity leave, on parental leave, or temporarily transferred to another position. This is due to the fact that in this period the employee retains his workplace(Position in the staff list).
Thus, logically, the employer is obliged to offer so-called permanent vacancies. However, there is no direct prohibition in the legislation on the offer of temporary vacancies to employees who have been made redundant. That is, the employer can offer employees and temporary vacancies, while they need to conclude a fixed-term employment contract - for the duration of the absence of the previous employee. It should be noted that the practice of the courts this issue is not unambiguous (definitions of the Moscow City Court dated July 1, 2010 No. 33-19668, St. Petersburg City Court dated August 30, 2010 No. 33-11908).

Dismissal before the expiration of the two-month period

If an employee who has fallen under the reduction writes consent to early dismissal, the employment contract with him can be terminated before the expiration of a two-month period. Such an employee must be paid additional compensation, the amount of which depends on the time remaining before the expiration of the two-month notice period (part 3 of article 180 of the Labor Code of the Russian Federation).
At the same time, an employee may quit not due to redundancy, but at his own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employer is not obliged to pay compensation to the employee related to redundancy dismissal (Article 178 of the Labor Code of the Russian Federation).

Footnotes:
1 st. 81 of the Labor Code of the Russian Federation
2 tbsp. 179 Labor Code of the Russian Federation
3 art. 179, 180 of the Labor Code of the Russian Federation
4 tbsp. 394 of the Labor Code of the Russian Federation
5 st. 180 of the Labor Code of the Russian Federation
6 h. 3 tbsp. 80, part 1, art. 180 of the Labor Code of the Russian Federation
7 p. 2 art. 25 of the Federal Law of April 19, 1991 No. 1032-1
8 art. 178 Labor Code of the Russian Federation
9 approved. fast. Goskomstat of Russia dated 05.01.2004 No. 1

One of the grounds for terminating an employment contract at the initiative of the employer is a reduction in the number or staff of the company's employees 1 . Before layoffs, the personnel department and company management need to decide in advance whether there will be a reduction in staff or only in numbers.
Downsizing is a reduction in the number of staff members for a particular position. For example, instead of seven analysts, four remain on the staff list. Reduction of staff is a complete exclusion from the staff list of some positions. For example, the position of an analyst is completely excluded from the staff list.

Which option should an employer choose?

Despite the fact that the Labor Code provides for the same amount of guarantees and compensations for employees subject to dismissal due to a reduction in the number and staff, in practice the situation looks different.
In the event of a reduction in the number, the question of the pre-emptive right to remain at work 2 inevitably arises. The employer needs to choose from several employees with the same positions those who will have to be fired, and this choice must be justified. Of course, the Labor Code clearly states that the preferential right to stay at work (with a reduction in both the number and staff) is granted to employees with higher labor productivity and qualifications. However, most practitioners are inclined to believe that in the event of a reduction in staff, the pre-emptive right does not apply. After all, all employees with the selected regular position, that is, the employer does not have to choose which of the employees to leave and who to fire.
Judicial practice also proceeds from the fact that when reducing staff, the pre-emptive right is not taken into account when offering vacant positions. In this regard, from the point of view of the risks of litigation with dismissed employees, a redundancy procedure is a more reliable option.

We comply with the dismissal procedure

When reducing employees, it is important to correctly carry out all procedures and draw up documents 3. Violation of the established procedure may lead to the fact that the dismissed person will have to be reinstated and paid for his forced absenteeism 4. The court can reinstate an employee dismissed for redundancy, even if the employer made errors of a purely technical nature during the paperwork. The procedure for reducing the number or staff of employees consists of several stages.

Reduction Order
First of all, the head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced. The same or a separate order must approve the new staffing table (with the changes that resulted in the reduction).

Active LLC in 2011 rented a building for an office in which it conducted its activities. In 2012, management decided to cut rental costs due to unstable financial position companies. Since February 2012, Aktiv LLC has been renting half of the building, in connection with which the head decided to reduce the number of cleaners (from two to one).
A downsizing order was issued (see below).

ORDER #2
on downsizing

Due to the decrease total area leased premises for the office of Aktiv LLC
I ORDER:
1. To exclude from May 2, 2012 from the staff list of Aktiv LLC a staff unit by position:

2. Head of the personnel department Kalashnikova A.L. in the manner prescribed by the current labor law: notify the employee Maevskaya O.G. about the upcoming dismissal to reduce the number; report to the employment service authorities data on the upcoming release of the employee; prepare a list of vacant positions for the proposals of the released employee.

3. Approve the staffing table of March 1, 2012 No. 05-SHR and put it into effect on May 2, 2012.
Acquainted with the order:
Head of the personnel department Kalashnikova A.L. Kalashnikov

Employee notification
About the upcoming dismissal due to a reduction in the number or staff of employees must be warned in advance - personally and against signature at least two months before the dismissal 5 . If the employee refuses to put a mark on receipt of the notification, you need to draw up an act in front of witnesses (at least two people), which will be confirmation of the fact of the notice of dismissal.

The head of Aktiv LLC decided to eliminate the position of "web application developer" in order to reduce labor costs in the company. Startsev I.P. will be dismissed due to staff reduction on 02.05.2012. Personnel service gives him a notice against signature (see below), which Startsev AND.P. must sign, 03/01/2012 (at least two months before the date of dismissal). At the same time, Active LLC has a vacancy for a web designer, and it was offered to Startsev I.P.

Notification
about the upcoming dismissal due to the reduction of the staff of the organization

Dear Ivan Petrovich! In connection with the implementation of measures to reduce the staff of employees, your position "web application developer" from May 2, 2012 will be reduced.
According to part 1 of article 180 of the Labor Code of the Russian Federation, you are invited next work(vacant position) in Aktiv LLC, corresponding to your qualifications: web designer.
In accordance with Part 1 of Article 178 of the Labor Code of the Russian Federation, you will be paid a severance pay in the amount of your average monthly earnings, and you will also retain your average earnings for the period of employment, but not more than two months from the date of dismissal (with offsetting the severance pay).
Reason: Order No. 12 dated March 1, 2012.
Director Olkhin I.D. Olkhin
Acquainted with the notice
Startsev I.P. Startsev 01.03.2012

Job offer
Employees must be offered vacant positions available to the employer at that time, to which they can be transferred 6 . This must be done not once, along with the notice of dismissal, but several. Employees to be made redundant must be offered every job that appears in the company during the notice period. Based on the practice and position of the courts, we recommend that employees who are subject to redundancy be informed of vacancies three times: together with the notice, one month after reading the notice and on the day preceding the last working day.
We pay attention to what needs to be offered not only vacant position or a job corresponding to the qualifications of the employee, but also a vacant lower position or lower paying job. At the same time, the employer is obliged to offer the employee all the vacancies that meet these requirements that he has in the area. An employer is obliged to offer vacancies in other localities only if this is expressly provided for in a collective or labor agreement.
If the employer conducts a reduction in the number or staff, he should not place advertisements for the search for candidates for such positions. We also recommend that you do not re-enter the position in the staffing table for at least six months after the completion of the reduction procedure. Otherwise, employees have a chance to successfully challenge the dismissal and reinstate their jobs, proving that there was no actual reduction in the number or staff.

Employment Service Notice
The employer is obliged to report the reduction in the number or staff to the employment service 7 . This must be done in writing no later than two months before the dismissal of employees. If the decision to reduce the number or staff of employees can lead to mass layoffs - no later than three months before the start of the relevant activities. In an appeal to the employment service, the position, profession, specialty and qualification requirements to them, the conditions of remuneration of each individual employee. Criteria for mass layoffs are determined in industry and (or) territorial agreements.
At the final stage of the procedure for reducing the number or staff, it is necessary to pay compensation to laid-off employees who did not agree to vacancies and will not continue to work in the company in other positions. Employees need to pay a severance pay in the amount of the average monthly earnings and keep the average earnings while the dismissed person is looking for a job (but no longer than two months from the date of dismissal) 8 . You also need to issue orders to terminate employment contracts in the form of No. T-8 9 and make entries in the work books of dismissed employees. The entry will look like this: “Dismissed due to a reduction in the number (staff) of employees of the organization, clause 2 of part 1 of article 81 of the Labor Code of the Russian Federation.”

Preparing documents for court

The downsizing must actually take place. This fact is confirmed by the submission to the court of the staffing table before the reduction procedure and after its completion (after the reduction, the new staffing table approved by the order should be in force). Judicial practice proceeds from the fact that the right to determine the number and staff of employees belongs to the employer. Although the employer is not required to prove the rationale for the decision to reduce staff, it is recommended to prepare a feasibility study. The presence of such a document will strengthen the employer's position in court and refute the employee's arguments that the reduction was far-fetched. Often, employees bring printed notices to the court stating that during the downsizing period, the company was looking for employees for the positions being reduced. Such evidence may indirectly confirm the groundlessness of the reduction procedure, therefore I recommend that you refrain from publishing vacancies for positions being reduced until the employee is fired and in the next 2-3 months.