It would seem that everything is clear. The Labor Code contains Art. 261, which defines categories of persons who are not subject to reduction. These are pregnant women, single mothers and other persons raising children under the age of 14 and a disabled child under the age of 18, women with a child under the age of 3. But in practice everything is much more complicated.
There are cases when an organization does not have a collective agreement, and management has planned a procedure for reducing the number of staff, and therefore began to serve notices to employees. And suddenly the team organizes itself and nominates initiative representatives. The complexity of the situation lies in the fact that most often the representatives are those people who themselves fall under the reduction procedure.
What to do with negotiators?
Art. 39 of the Labor Code of the Russian Federation provides guarantees and compensation to persons participating in collective bargaining. It states that employee representatives who were nominated as negotiators for the purpose of concluding a collective agreement retain their place of work for the entire period of negotiations.
Negotiations on concluding a collective agreement are a lengthy process and can take three months. Therefore, if you are negotiating a collective agreement at a time when at the same time the procedure for reducing the number of employees has been launched, you cannot reduce representatives. They retain their place of work for the entire period of negotiations.
Employees with children under 14 years old at secondary schools
When staffing is reduced, women with children (3, 6, 14 years old) can be fired only if the above-mentioned offenses are present. Specialists who have children under 14 years of age have the right to demand the establishment of a part-time shift or week (this is specified in Article 93 of the Labor Code of the Russian Federation). This approach helps reduce their responsibilities at work and increase free time for children.
Based on Art. 261 of the Labor Code, as an exception, it is permissible to dismiss a mother with a child under 14 years of age for guilty actions or immoral behavior.
Reduction of women on maternity leave for up to 3 years
You also need to remember about Art. 256 of the Labor Code of the Russian Federation, which states that for women (fathers, grandmothers, grandfathers and other persons) who are on parental leave until the child reaches the age of 3 years, they retain their place of work for the duration of this leave ( job title).
Difficulties with this category of personnel often arise in state-owned companies. Personnel officers receive orders from above that it is necessary to exclude some positions and even structural units, and suddenly it turns out that it is in these structural units that people on parental leave work. What to do with them? They often follow orders and cut back. But if the employee goes to court, he will be reinstated at work.
When is reduction possible?
The legislator allows exceptional cases of dismissal of women with children under three years of age:
- The employee committed a gross violation (one is enough) of labor regulations, the maximum punishment for which is dismissal. Violations of this kind include: absenteeism; alcohol consumption; repeated violations of labor discipline; periodic delays. Each of the listed violations must be documented (an act, a report, an explanatory note from the employee herself, an order to impose a penalty). Documentary evidence must be at least three during the year. The absence of written evidence of the presence of violations excludes the application of dismissal. Oral testimony from other employees is not considered as evidence of wrongdoing;
- carrying out actions leading to deliberate damage to the tenant’s property or its theft;
- the presence of actions that cannot be considered acceptable for the position held (moral aspect). Like any other violations, such actions must be documented and brought to the attention of the employee.
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Dismissal of a pregnant woman
The only reason on which pregnant women can be fired is the liquidation of the organization or termination of the activities of the individual entrepreneur.
It is also important to pay attention to one detail here. Even if the employee herself did not know about the pregnancy, but it later turned out that she was pregnant on the date of dismissal, then she will be reinstated at work through the courts.
According to paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1, “the employer’s lack of information about pregnancy is not a basis for refusing to satisfy a claim for reinstatement at work.”
And one more thing: a pregnant woman, whose employment contract was terminated at the initiative of the employer, is subject to reinstatement even if by the time her claim for reinstatement is considered in court, the pregnancy has not persisted.
Employers constantly return to the same question: what to do with pregnant women and people on maternity leave for up to 3 years, if they need to be laid off due to production needs, but this cannot be done by law?
In fact, in this case there are only two ways out:
- you reach an agreement with them and formalize the dismissal by agreement of the parties;
- waiting for them to move from the preferential category to the non-preferential category.
Calculation
If a woman has given her consent to the dismissal procedure, then on the last day a full settlement must be made to her, including the following:
- remuneration for the period actually worked;
- compensation for previously unused vacation. If the reduction is carried out before the end of the year, when the employee has already used vacation, then the employer is still obliged to pay a sum of money, taking into account that 1 month actually worked is equal to 2.33 days of paid rest;
- previously unpaid compensation for sick leave.
On the same day, the employee is given all documents, including those requested individually and a work book.
Sample entry in the work book about dismissal due to reduction
It is important to know! If a woman is not at her workplace on the day of payment, the employer is obliged to inform her of the need to obtain all documents. This can be done using a registered letter with acknowledgment of receipt. After sending it, the employer is relieved of all responsibility for late payment. To send all documents by mail, the director of the organization must obtain appropriate consent from the employee.
Who falls under the “single mother” category?
Since a single mother is protected from the reduction of Art. 261 of the Labor Code of the Russian Federation, it is important to understand how the courts understand this category of workers. If we turn to paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1, it recommends proceeding from the fact that single mothers include a woman who is the only person who actually carries out parental responsibilities for the upbringing and development of natural or adopted children in accordance with with family and other legislation, that is, raising them without a father, in particular, in cases where the child’s father:
- died;
- deprived of parental rights;
- limited parental rights;
- declared missing;
- declared incompetent (partially capable);
- due to health reasons, he cannot personally raise and support a child;
- is serving a sentence;
- avoids raising children or protecting their rights and interests.
Can a single mother be fired?
Therefore, it is worth dwelling separately on this issue and finding out everything connected with it:
- what benefits are available for redundancy,
- what happens if it is illegal to lay off a single mother,
- when the law provides for such a possibility and
- how to format it correctly.
First, let's look at the status of a single mother. It is assigned to those women who raise their child without a father.
According to the rules specified in Articles 261, 263 of the Labor Code, it is impossible to lay off a mother who has a dependent child under 14 years old. In this case, similar privileges are provided to single fathers.
However, as you know, rules are created so that there are exceptions to them.
In our case it is:
- when a company carries out a complete cessation of its activities, that is, self-liquidates,
- the child is 14, in which case dismissal and reduction will occur on a general basis.
If, nevertheless, management cannot get away with laying off a single mother, it is obliged to provide her with a similar job that corresponds to her level of qualifications.
Note! If a single mother does not agree with the position offered to her, this should be recorded in writing. This is a reason to invalidate the contract.
When such a place cannot be found, the employer must provide a lower position in his own company. This need is indicated in Article 81 of the Labor Code.
What to do if an employee is on vacation or sick leave and needs to be made redundant?
Dismissal of an employee during a period of incapacity and while on vacation is considered illegal (Article 81 of the Labor Code of the Russian Federation).
If an employee resigns of his own free will, then nothing prevents him from being fired during vacation or sick leave. But the reduction is the initiative of the employer. And here everything is not so simple.
Situations often occur when the employer actually does the right thing: he notifies the employee of the upcoming dismissal two months in advance, draws up the documents, but then the day of dismissal comes, and the employee does not come to work - he says that he is sick. What to do?
Many employers start making things up and end up making mistakes. Although the basic rule that they must follow is that no matter how long an employee is sick or on vacation, as long as his disability or vacation lasts, you cannot fire him.
What scares employers in such situations? While the employee is on sick leave, a new staffing table may come into force, and his work function will “disappear.” In fact, it is no longer possible to provide the employee with work.
For example, you expect an employee to return from sick leave on November 10th. Until November 9, he had temporary disability. November 10th comes, you file your resignation. At the same time, there is no need to set a dismissal date of November 8 or 9, since it should not fall during the period of incapacity or vacation.
Since on November 10 you actually can no longer provide an employee with work, the ideal solution in this case is to formalize downtime for organizational reasons (lack of a position in the staffing table) and formalize the dismissal on November 10.
If staff numbers are reduced
When it comes to downsizing, the employer faces a choice:
- On the one hand, he can offer the maternity leaver another position. It must be remembered that a transfer to another vacancy will be legal only if the employee has given her written consent. It is possible to introduce a new staffing position specifically for a woman on maternity leave.
- The second possible option when reducing the number is to leave the maternity worker her place, while reducing the entire staff with the exception of a pregnant woman or a woman caring for a child.
It is important to remember that an employee cannot be fired, even if the employer did not know about her pregnancy at the time the decision to lay off was made.
If a woman, not knowing about her pregnancy, was fired, and then provided a certificate confirming her position, the employer issues an order to reinstate the employee. You just need to make sure that the gestational age indicated on the certificate confirms the “interesting position” on the date of reduction.
In cases where staff reduction has just begun, it is enough to simply cancel the reduction of the position of the pregnant employee. If a new staffing table has already been drawn up, the maternity leaver can be transferred to another position with written consent.
How is the priority right to remain at work determined?
At the same time as those employees who cannot be laid off, one must also remember about those categories of personnel who, by law, have a preferential right to remain at work. And here the most important question is: when does such a right arise? Then, when there are several employees vying for one place.
For example, you have two full-time electrician positions, but you only need to keep one. We will have to decide who has priority to remain at work.
It is in such situations that the need to create a commission arises. And although this is not written about in any regulatory act, many employers felt the need for a commission when faced with the intricacies of the personnel reduction procedure in practice.
The fact is that the key task of the commission is to collect information about employees and determine their preferential rights. Such work greatly helps and protects the company from negative consequences, because the main motive of employees who challenge the layoff procedure in court is to prove that they should have stayed working. Their question is “why me?” triggers a check of the correctness of the employer’s actions - did he identify the preemptive right and how exactly?
How can you fire a single mother?
The reduction procedure itself is very labor-intensive. To produce it, you need to follow all the rules and prepare the documentation correctly.
If you need to lay off a single mother, everything becomes much more complicated. But, if there is no other way out, you should be patient and follow the steps listed below.
The decision to terminate the employment contract and notify the employee:
- First, the director of the organization draws up a memo, where he refers to the lack of demand for certain jobs due to the fact that the volume of work has become significantly smaller. Thus, in order to reduce unnecessary spending, it is necessary to make cuts.
Such a note is usually accompanied by documents confirming the need to cut jobs.
This could be an analysis of the company’s economic situation, plans to reduce losses, reports, etc. The company’s management, after reviewing all the information, makes a decision to eliminate ineffective positions.
If the company is large and there are many similar positions, employees will undergo an assessment, the results of which will determine the level of qualifications of each of them.
After selecting the most ineffective employee, the final decision is made to fire him.
2. Management must then sign a dismissal order due to the reduction.
Note! In order not to violate labor laws, the employee must be warned about the layoff in advance.
At least 61 days before the selected day. Moreover, the employee must sign to confirm receipt of the document.
The notification is written by the head of the company (director, general director, manager, etc.). Of course, in fact, the document is prepared by authorized persons.
In different companies, the director may delegate his powers to various employees for this purpose - lawyers, secretaries, personnel department employees, sometimes even accountants.
They will fill out the document correctly and take into account all the nuances. The director will only have to read the text and sign.
There is no standard form for such a document. In large companies, they most often make their own template, and only after that they use it, so as not to print repeated information regarding the organization every time.
In small companies they simply write text in any form.
A correctly completed notification must contain the following information:
- name of company,
- the day the document was signed,
- day of future dismissal,
- reason for dismissal,
- link to order
- suitable positions that can be filled immediately.
notification of employee dismissal here:
Form notice of dismissal of an employee.
