Is it possible to lay off a pensioner due to staff reduction in 2021?

The procedure for dismissing an employee related to the tasks of reducing personnel units is a complex process, the features of which affect not only material, but also emotional states. Retrenching a pensioner is an even more difficult task, exacerbating an already difficult situation. In order to reduce the degree of excitement and indignation towards personnel management, the enterprise administration must act as clearly as possible, in absolute compliance with all regulations present in such cases.

Can a pensioner be fired due to redundancy?

Information

Until 1992, a labor code was in force, which allowed the enterprise administration to dismiss an employee after his age approached the retirement limit. Based on the new norms regulating the relationship between the employer and employees, the citizen retains the right to work.

Pensioners, like other employees, may be laid off. The dismissal procedure takes place on a general basis. All actions of the personnel department comply with the provisions of legal norms.

Measures to reduce the number of staff units are most often triggered by the following events:

• modernization of production;
• change in the scope of activity;
• job reductions in order to optimize labor resources;
• reduction in the volume of products produced at the enterprise.

Important

Pensioners who have dependent minor children are not subject to dismissal.

The ban also applies to:

• guardians;
• disabled people of WWII and combat.

Conditions for early retirement in case of staff reduction

There are cases when workers who have little time left before receiving their old-age pension are forced to be fired by company management due to a revision of the number of employees. The protection of the rights of people of pre-retirement age, the reduction of which is inevitable, is the law of the Russian Federation (Article 32 of the Federal Law “On Employment of the Population in the Russian Federation”). They are paid an early pension in case of staff reduction in the following conditions:

• age 63 years (men) and 58 years (women), i.e. less than two years remain until retirement age;
• the reduction takes place due to the optimization or termination of the enterprise;
• there is a total work experience of 25 and 20 years, respectively.

In this case, the law provides for the possibility for a person to choose not a pension, but a benefit. It is calculated for 36 months. The labor exchange is looking for work for these citizens, since they have not lost their right to work.

Dismissal procedure

Due to the fact that a working pensioner is an ordinary staff member, the dismissal procedure is carried out in accordance with the general requirements of the law.

The actions of the administration represent a certain algorithm, following which many mistakes can be avoided.

1. The director of the company, together with the heads of structural divisions, holds a meeting at which an official decision is made to change the staffing table.
2. Based on the decision made, the commission members issue an order. The text indicates the need to reduce certain staffing positions, the names of positions, the names of employees and the date of execution of the order.
   Information

   The list of those affected by reduction is compiled by the heads of departments, but is approved by all members of the commission, including the director.

3. According to the legal framework, employees included in the list are given a written notice of the administration’s intentions 2 months before the date of execution of the order.
4. If there are vacancies at the enterprise that correspond to the qualifications of the employee who was laid off, he is offered a new position. In this regard, retirees have priority, because their experience and professional level are of great value to the company.
   Attention

   One of the important conditions for the possibility of transfer is good health.

5. Simultaneously with notifying the employee of the upcoming layoff, the manager notifies the trade union organization of the upcoming changes, as well as the employment service.
6. All employees included in the layoff list are given a written notice against their signature.
7. In order for qualified employees, such as retirees, to continue to use their accumulated experience, the administration offers an alternative vacancy. The pensioner confirms his disagreement to renew the employment agreement with his signature in the act, which is drawn up in the event of refusal to accept the administration’s offer.
   Attention

   He retains the right to resign early while maintaining benefits for the remaining period.

8. Two months after receiving the written notice, a dismissal order is issued. The wording indicates the reason - reduction.
9. The dismissed employee is given documents (including a work book) and payment funds. The process of transferring papers and funds is recorded in personnel journals and accounting statements.

Payments and benefits

The date indicated in the notice of reduction is the last working day. It is then that the employee is given documents and payment funds for the period worked. The law also provides for the payment of benefits in the amount of average monthly earnings, and this amount is retained by the pensioner for two months.

The benefit is, in essence, material support for the fired person during the period of searching for a new job. If this appears in the first month after dismissal, then the employer has the right to refuse the next tranche.

The total amount issued includes:

• wages;
• severance pay;
• compensation for unclaimed leave.

Based on the internal regulations of the organization, a reduced employee may be awarded an additional amount for length of service or other achievements.

Attention

Payments to a pensioner with whom the employment agreement is terminated early are carried out in accordance with legal acts, namely Art. 178, 180 Labor Code of the Russian Federation.

Within 2 weeks, a redundant employee can register with the employment service, then it becomes possible to receive severance pay for the third month.

Working off

According to the regulations described in labor legislation, the administration informs the employee in writing about the upcoming reduction of his position. For two months from the date of delivery of the notice, the previous functional duties are to be performed.

But pensioners can exercise the right to early dismissal by drawing up an application with a corresponding request. If the employer agrees to terminate the employment agreement, the employee retains the right to receive severance pay and other payments provided for by legal acts, and is also paid a sum of money proportional to the period remaining from two months.

Attention

Pensioners have a pre-emptive right to terminate their employment relationship with their employer early, referring to Art. 81, clause 2, part 1 of the Labor Code.

If early dismissal is denied, the pensioner must work for the required period (2 months). An alternative option is voluntary resignation. The employee submits an application indicating the reason - retirement. The Labor Code allows you to resign in this case without working on the day specified in the application. But at the same time, a pensioner should not count on the severance pay due to the staff being reduced.

Manager's responsibility

All employers, without exception, are obliged not only to know the rights of pensioners, but also to comply with them. Any violation associated with deviation from labor legislation is subject to liability.

If an employee of retirement age believes that his rights were not taken into account during the reduction, then by turning to the judicial authorities, he can easily restore justice.

Depending on the type of offense, the manager will bear financial, administrative or criminal liability, and in some cases several punishments may be imposed at once.

Thus, after reading the text of this article, it becomes clear that the process of laying off an employee of retirement age is quite lengthy and labor-intensive. To facilitate and somewhat speed up the reduction, act strictly within the law and take into account all the nuances of this procedure. We wish you success!

Entry in the work book

The text of the entry in the work book must match the contents of the dismissal order. It is entered by the personnel officer after the introductory signature of the pensioner under the order of the manager.

On the last working day, an entry is made in the work book, including the following data.

• Record number;
• Reason for dismissal (dismissal due to layoff);
• Link to the article of the code (Article 81, clause 2 of the Labor Code of the Russian Federation);
• Date of termination of the employment agreement;
• Signature of the head of the enterprise;
• Seal of the organization.

Attention

The order and entry entered into the work book must necessarily contain references to the article of the Labor Code of the Russian Federation.

Is it possible to appeal dismissal?

The list of redundant staff is compiled not on the basis of age category, but on professional suitability, taking into account changes planned in production. Therefore, people of different ages can get into it. The pensioner has the right to challenge management’s decision in court, citing the following reasons:

• belonging to a preferential category of persons (presence of guardianship, status of a combat disabled person, etc.);
• inability to exercise the priority right to stay at the enterprise or take a vacant position;
• if the notification deadlines were violated during the staff reduction procedure;
• if an incorrect entry is made in the work book;
• upon refusal to pay severance pay.

The reason for proceedings in state authorities is often the requirements of Art. 179 of the Labor Code of the Russian Federation, which clearly states that employees of retirement age should enjoy the preferential right to transfer to another division of the enterprise. A high qualification level and experience are always a priority for any organization. However, the proposed vacancy must be commensurate with the qualifications of the unit being reduced.

Important

Dismissal is considered illegal when the staffing table remains unchanged. This decision by management contradicts the regulations for processing documents related to reducing the number of staff.

What to do if they don't pay?

When laying off a pensioner, the employer must make all payments provided for by law. Failure to fulfill such an obligation is a direct violation of the labor rights and interests of the employee. Such an offense carries very serious penalties.

So, what to do when you find yourself in such a situation? Is there a chance to be heard? The Labor Code of the Russian Federation provides for an entire section (No. 13) regulating the procedure for protecting the labor rights of citizens, considering disputes arising in this area, as well as bringing violators to justice.

When faced with evasion of payment of due compensation, a pensioner can use the following options to protect his interests :

1. Contact your trade union organization for help.
2. Write a complaint to the state labor inspectorate.
3. File a lawsuit.

Special material has been prepared on the topic of how to complain to the labor inspectorate about an employer; we recommend reading it.

These methods should be applied gradually, starting from the easiest method of influence and up to litigation. In addition, you must first talk with management, explaining your point of view and supporting it with legal norms.