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Who has the advantage of downsizing. Downsizing: Preferential right to retain position. ✔ The main reasons for the reduction

Commentary on article 179

1. When determining the existence of this right by virtue of law, two criteria are taken into account in succession: first of all, this is the level of labor productivity and qualifications, and then a number of circumstances that characterize the personality of the employee.

As follows from Art. 179 of the Labor Code, higher labor productivity and qualifications are certainly a priority criterion in comparison with all other circumstances, a list of which is given in the second part of the commented article. At the same time, one should take into account the rules of other articles of the Labor Code, which actually correct the absolute nature of the norm of Art. 179.

First, it should be borne in mind that the Labor Code establishes a circle of circumstances under which it is prohibited to terminate an employment contract at the initiative of the employer. In particular, it is not allowed to dismiss an employee (with the exception of the case of liquidation of an organization or termination of activity by an employer - an individual) during the period of his temporary disability and during his vacation (see Article 81 of the Labor Code and commentary thereto). In the same way, it is not allowed to terminate an employment contract at the initiative of the employer with pregnant women, women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child - up to eighteen years), other persons raising the indicated children without a mother (see article 261 of the Labor Code and commentary to it).

The general prohibition of a lockout in the process of settling a collective labor dispute, including a strike (see Article 415 of the Labor Code and the commentary thereto), also applies to cases of termination of an employment contract due to a reduction in the number or staff of employees.

Secondly, the termination of an employment contract at the initiative of the employer with certain categories of employees is allowed only with the consent of the competent authority. For example, termination of an employment contract with employees under the age of 18 (except in the event of liquidation of an organization), in addition to observing the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission on minors and the protection of their rights (see Article 269 of the Labor Code and comment on it). As follows from the Code, dismissal in accordance with paragraphs 2, 3 or 5 of Art. 81 of the Labor Code of the heads (their deputies) of elective collegial bodies of primary trade union organizations, elective collegial bodies of trade union organizations of structural divisions of organizations (not lower than shop and equated to them), not released from their main work, is allowed, in addition to the general procedure for dismissal, only with the prior consent of the corresponding higher elective trade union body (see article 374 of the Labor Code and commentary to it; see also article 376 of the Labor Code and commentary to it). Representatives of employees, their associations participating in the resolution of a collective labor dispute cannot be dismissed by the employer during the period of resolution of a collective labor dispute without the prior consent of the body that authorized them to represent them (see Article 405 of the Labor Code and commentary thereto).

Thus, in a number of cases, the guarantees established by the legislator for certain categories of workers or under certain conditions, excluding the possibility of their dismissal at the initiative of the employer, thereby make it impossible to apply to these workers and apply the rules established by Art. 179 TK. In other cases, the possibility of terminating an employment contract with employees is made dependent on the will of a third party, respectively, the refusal of this person to give consent to the dismissal of an employee excludes the possibility of applying the commented article in relation to his rules.

2. As follows from Part 2 of Art. 179, the list contained in it is exhaustive and there is no reference to other regulatory legal acts. Taking into account this circumstance, one should evaluate the rule contained in the Federal Law of May 27, 1998 N 76-FZ "On the Status of Military Personnel", which establishes for citizens dismissed from military service and members of their families the preferential right to remain at work, for which they arrived for the first time, with a reduction in the staff of workers (clause 5, article 23). Since, by virtue of the current legislation, in the event of a conflict between the Labor Code and other federal laws containing labor law norms, the provisions of the Code are applied (see Article 5 of the Labor Code and the commentary thereto), this provision of the Law on the Status of Military Personnel is not subject to application until the introduction relevant additions to Art. 179 TK.

A similar conclusion must be drawn regarding other categories of workers, who were given the preferential right to remain at work upon dismissal due to a reduction in the number or staff by other regulations.

3. As follows from art. 179, the categories of employees enjoying the preferential right to remain at work in the event of a reduction in the number or staff may be determined, in addition to the law, also by a collective agreement. Defining such categories of workers, the parties to the collective agreement are only entitled to supplement the content of Part 2 of Art. 179. In view of the imperative nature of Art. 179 they cannot change either the order of granting the right in question, established by Part 1 and Part 2 of this article, or the list of categories of workers specified in Part 2 of Art. 179.

In addition, when establishing, in the manner of collective agreement regulation, a list of persons with a priority right to remain at work, one should take into account the general principle of labor law: the inadmissibility of discrimination in the sphere of labor (see Article 3 of the Labor Code and commentary thereto). Taking into account the provisions of this article, it is unacceptable to link the establishment of this right with such circumstances as gender, race, skin color, nationality, language, origin, property, social or official status, etc. In particular, the establishment of a preferential the right to be left at work in connection with membership in a trade union, including a trade union that has concluded an appropriate collective agreement.

4. It should also be borne in mind that, unlike other articles of this chapter, the rules of Art. 179 apply upon termination of an employment contract both with an employer-organization (legal entity) and with an employer-individual (of course, logically, we should talk about employers-individual entrepreneurs).

With the difficult economic situation in the country, downsizing is not uncommon. Even highly qualified employees are not immune from it, but some have preferential rights. In this article, you will find out who is the first to be laid off, who is given preference for equal skill levels, and who cannot be fired at all on this basis.

What is an abbreviation

There are 2 concepts - downsizing and downsizing. In Art. 81 of the Labor Code of the Russian Federation does not decipher the differences between them. In practice, the difference is also negligible. With a reduction in the number of employees, the position remains in the staff list, but the number of people occupying it decreases. When the staff is reduced, the position is liquidated.

The reasons for the reduction in the company are:

Difficult economic situation in the country.
Merger, reorganization or acquisition of companies.
Internal optimization.

Who and why is the first to be laid off

Curious information

Not only specific positions, but also entire divisions, divisions, departments can fall under staff reduction. The employer has every right to do this. However, in both cases, during the reduction, observance of the rights of workers is mandatory, and those who are not allowed to be fired must remain at the enterprise. If entire divisions are going to be reduced, then employees who have “special” rights should be transferred to other departments.

Consider who is the first to be laid off at work and on what basis. The employer determines preferential rights, and for this a certain algorithm is provided:

Of all candidates for dismissal, employees who are prohibited by law from being laid off are excluded. According to Art. 261 of the Labor Code of the Russian Federation, these include pregnant workers, mothers of children under 3 years old, single parents with children under 14 years old or disabled children under 18 years old, as well as some others. It is forbidden to dismiss employees on maternity leave due to layoffs (part 4 of article 256 of the Labor Code of the Russian Federation and part 6 of article 81 of the Labor Code of the Russian Federation).
The remaining workers are assessed by skill levels and labor productivity. The comparison is carried out between employees who occupy the same positions created within the same structural unit. Correctly assess the qualifications of two lead accountants working in the same department. It is wrong to compare a leading specialist and an accountant of the 2nd category - this is indicated in the appeal ruling of the Moscow City Court No. 33-27711 / 2015 of 08/06/2015. Similar rules apply to the evaluation of labor productivity.
If the comparison revealed the same levels of skills and productivity, then family circumstances and other advantages are taken into account when reducing the worker. There is one exception. If a position is abolished or all staff units of one position are reduced, then priority rights are not taken into account. This is indicated in the appeal ruling of the Moscow City Court No. 33-1708 of 01/22/2015.

What are preemptive rights and who has them

With equal levels of qualification and labor productivity of employees, preference is given to those who have advantages in terms of staff reduction. According to Art. 179 of the Labor Code of the Russian Federation, the following categories of workers can apply for retention of work:

family people who have two or more dependents (minor children, other disabled family members who are fully supported by the employee or regularly receive assistance from him, representing their permanent and main source of livelihood);
the only "breadwinners" in the family are employees whose families do not have other persons with a permanent income;
employees with injuries and occupational diseases received while working in this organization;
employees who are currently improving their qualifications in the direction of the employer.

If you have been illegally fired due to redundancy, then you need to contact several authorities. First, send a written application to the organization's trade union. The trade union must consider the complaint within a week. Also, this case can be considered by the Federal Labor Inspectorate and the prosecutor's office. If the trade union and the labor inspectorate did not reveal violations, then a lawsuit must be filed.

military spouses;
military personnel transferred to the reserve;
authors of inventions;
invalids of the Great Patriotic War and military operations;
persons affected by radiation;
and some others.

Priority rights to leave at work may also be provided for by internal collective agreements in the company.

How employees are compared

Some facts

At the end of the employment contract in connection with the liquidation of the enterprise, or a reduction in the number or staff of the company's employees, the dismissed employee must be paid a severance pay according to the average monthly earnings. For the dismissed employee, the average monthly salary is fixed at the time of the job search within 2 months from the date of dismissal.

The law does not describe the specific requirements for the procedure for identifying the preferential rights of employees. Practice shows that the courts have more confidence in the decisions of the commissions when fixing the results in writing.
Here are the main nuances that should be considered when comparing candidates for redundancy:

It is recommended that the commission include the heads of departments in which staff reductions are planned, as well as members of the trade union organization and specialists from other structural departments (lawyers, personnel officers responsible for quality control, etc.).
It is necessary to issue an order on the organization of a commission with a definition of the competence of each of its members. Personnel officers may fulfill the obligation to provide information on the imposed penalties and incentives. Heads of departments should be entrusted with the formation of reports on work, the preparation of characteristics, etc.
It is advisable to compile summary tables that reflect the results of comparing the qualifications and labor productivity of workers according to a number of criteria.
The conclusions of the commission should be recorded in the official minutes of the meetings.
The commission must make its conclusions based on the results of comparing the productivity of each employee, taking into account the entire set of criteria. The decision that one employee has a higher qualification because the second has less experience, the court recognizes as illegal.
If candidates for reduction are registered in a trade union and regularly pay membership dues, the employer is obliged to take into account the opinion of this organization on the advisability of dismissing an employee. This is a requirement of Part 2 of Art. 82 of the Labor Code of the Russian Federation.

Watch a video that will tell you about the categories of workers who are prohibited from layoffs

List of persons who cannot be fired for redundancy

The list of those who cannot be reduced by law includes the following categories of workers:

temporarily disabled persons;
employees on vacation (including student and unpaid);
mothers of young children under 3 years of age;
women and men raising a child under 14 years of age or a minor child with a disability alone;
trade union members.

Those who cannot be laid off from work also include pregnant employees and women on maternity leave. If an employee from the “inviolable” category is nevertheless fired due to a reduction in staff, he will be automatically reinstated at work by a court decision.

We are ready to answer your questions - ask them in the comments

PREEMPTIVE RIGHT

LEFT AT WORK

WHEN REDUCING

In the conditions of an unstable economic situation in our country, many employers are forced to reduce their staff and dismiss employees under clause 2, part 1, article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees of an organization, individual entrepreneur). Unfortunately, this measure is now becoming more and more popular.

However, employers, when separating from employees on this basis, must grant them a number of rights and guarantees prescribed by law. If any rights of the employee are violated, he can be reinstated in his previous job through the court or the State Labor Inspectorate, and the employer can still be fined a substantial amount.

One of the rights granted to an employee by law is the obligation of the employer to take into account the employee's pre-emptive right to remain at work when reducing. Today we will talk about this right. How to choose the right one who will stay and who will be fired? What are the nuances in such a choice? How to prevent violations of the rights of employees in determining the preferential right to leave at work?

One norm of the Labor Code of the Russian Federation is devoted to legal regulation regarding the pre-emptive right to leave at work with the reduction of ordinary workers. Recall her.

Article 179

When reducing the number or staff of employees, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference is given to staying at work: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood); persons in whose family there are no other self-employed workers; employees who received an industrial injury or occupational disease during the period of work with this employer; invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland; employees who improve their skills in the direction of the employer on the job.

The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.

Note. This article discusses issues related to determining the pre-emptive right to leave ordinary workers at work (working for individual entrepreneurs, in commercial organizations, etc.). Some features of determining the pre-emptive right may be established in other regulations. So, for example, according to paragraph 4 of Article 31 of the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation", the preferential right to fill a civil service position is granted to a civil servant who has a higher qualification, level of professional education, greater length of service in the civil service or work (service) in the specialty, area of training and higher results of professional performance. These features are not considered here.

From the history. Federal Law No. 90-FZ of June 30, 2006 amended Article 179 of the Labor Code of the Russian Federation and the provisions of this article began to apply to all employers, including employers of individual entrepreneurs. Prior to the introduction of appropriate changes, Article 179 of the Labor Code of the Russian Federation regulated the issues of granting a pre-emptive right to leave at work when laying off only employees of organizations.

Article 179 of the Labor Code of the Russian Federation has already been appealed to the Constitutional Court of the Russian Federation, but the Constitutional Court of the Russian Federation did not find any contradictions in it with the Constitution of the Russian Federation.

Determination of the Constitutional Court of the Russian Federation of December 21, 2006 N 581-O (excerpt):

“...According to Article 37 (Part 1) of the Constitution of the Russian Federation, labor is free; Everyone has the right to freely dispose of their abilities to work, to choose the type of activity and profession. These and other provisions of Article 37 of the Constitution of the Russian Federation, which establish guarantees of free labor, are specified in the Labor Code of the Russian Federation, which regulates the procedure for the emergence, change and termination of labor relations.

Among the guarantees of labor rights directed against the possible arbitrary dismissal of citizens from work, in particular in connection with a reduction in the number of employees (paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation), is the need for the employer to comply with the established procedure for dismissal: the employee must be informed about the upcoming dismissal warned by the employer personally and against signature at least two months before the dismissal; Simultaneously with the warning of the upcoming dismissal, the employer is obliged to offer the employee another job he has (both a vacant position or a job corresponding to his qualifications, and a vacant lower position or a lower-paid job), which the employee can perform taking into account the state of health, and the transfer to this job is possible only with his consent (part three of Article 81, parts one and two of Article 180 of the Labor Code of the Russian Federation).

Part one of Article 179 of the Labor Code of the Russian Federation is also one of the rules governing the procedure for dismissal due to a reduction in the number of employees - it defines a rule based on objective criteria for selecting employees to stay at work. Having established as such criteria a higher labor productivity of an employee and his qualifications, the legislator proceeded both from the need to provide additional measures to protect labor rights to employees with higher results of labor activity and better professional qualities, and from the employer’s interest in continuing labor relations with the most qualified and efficient workers. The correctness of the application by the employer of these criteria when carrying out measures to reduce the number or staff of employees at the request of the employee can be verified in court.

Consequently, the first part of Article 179 of the Labor Code of the Russian Federation, considered in systemic unity with other norms of the Labor Code of the Russian Federation (Articles 81, 180), cannot be regarded as violating the constitutional rights of citizens ... "

Also, according to paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, “termination of an employment contract with an employee under paragraph 2 of part one of Article 81 of the Code is possible provided that he did not have a preferential the right to be left at work (Article 179 of the Labor Code of the Russian Federation) and was warned personally and against signature at least two months in advance about the upcoming dismissal (Part two of Article 180 of the Labor Code of the Russian Federation).

Thus, the employer is obliged to apply the rules on the pre-emptive right to leave at work. Here is how he does it and what difficulties he encounters in doing so, we will consider further.

1. The preferential right to stay at work is not taken into account.

This is a common mistake that can occur when an employee is dismissed for redundancy - the employee's preemptive right was not taken into account. As you understand, ignoring the provisions of Article 179 of the Labor Code of the Russian Federation is a violation. If the employer generally forgets, when laying off his employees, to take into account someone's preferential right to stay at work (when he is obliged to do this), then this may turn out to be negative consequences for him. Further, we will also tell you that there are cases when the employer may not take into account the pre-emptive right to stay at work when laying off employees.

So, what will happen if the employer forgets to apply Article 179 of the Labor Code of the Russian Federation when laying off workers or applied it incorrectly?

Example.

The appeal ruling of the Moscow City Court dated February 4, 2015 in case No. 33-2009 (excerpt):

“...At the same time, as it is seen from the case materials, the defendant's assessment of the plaintiff's pre-emptive right to remain at work, provided for in Art. 179 of the Labor Code of the Russian Federation, was not produced.

In such circumstances, there were no grounds for the court to conclude that there had been a reduction in the position, and, at the same time, the procedure for dismissal had not been violated.

The Judicial Board concludes that there are legal grounds for dismissal under paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the reduction in the number or staff of employees of the organization was not available, and therefore the dismissal of the plaintiff is not legal.

The court did not take into account these circumstances, which led to an illegal and unjustified decision, in connection with which, the decision is subject to cancellation ... "

Thus, we must not forget that when reducing the number or staff of employees of an organization, an individual entrepreneur, one of the important stages of dismissal is the determination of the employee's preemptive right to remain at work. If the employer forgets to do this, the employee can be reinstated in his previous job.

2. Preemptive right to stay at work is not taken into account correctly.

But a mistake is also common in practice, when the employer seems to have taken into account the pre-emptive right to leave one or another employee at work, but did it wrong. For example, he left other workers at work, with lower labor productivity and qualifications. Or, when dismissing, he took into account the wrong factor that needed to be taken into account (for example, the presence of a disease). The following examples clearly illustrate the errors we just mentioned.

Example 1

The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated February 26, 2015 in case No. 33-2978/2015 (excerpt):

“... The court found that from the staff lists from the date and from the date. it follows that in the security department the number of staff units "controller" was reduced from 5 to 1.

Under such circumstances, it appears from the case file that there was a downsizing in OAO Tuymazysteklo.

As follows from the materials of the case and by the parties, it was not disputed that at the time of the reduction in the staff, the position of the controller was occupied by five people: the plaintiff N.I.M., as well as N.F.K., Ch.A.I., B.I.R. ., G.M.M.

Notification of the upcoming dismissal from the position of the controller under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, except for the plaintiff, no one received.

Thus, the court established that only the plaintiff was fired due to the reduction in staff.

From the materials of the case, it is seen that the plaintiff has a higher education, a qualification of a mechanical engineer, which is confirmed by a diploma of series B-1 N ... dated

At the same time, the court correctly pointed out that the inspectors of the security department N.F.K., Ch.A.I., B.I.R., G.M.M., who were given preference during the reduction of the staff, have a secondary education.

The Court also correctly pointed out that N.I.M. has been working in the regime department of JSC "Tuymazysteklo" since the date of the year, while B.I.R. - from date, Ch.A.I. - from date g, N.F.C. - from the date therefore N.F.K., Ch.A.I., B.I.R. experience is less than that of the plaintiff.

Evidence confirming that the plaintiff had a lower labor productivity compared to other employees holding the position of the controller who continued to work is absent and not presented by the employer.

Also, the defendant did not provide evidence showing that the plaintiff has disciplinary sanctions.

In view of the foregoing, the trial court came to the correct conclusion that N.AND.M. had a preferential right to leave at work in relation to N.F.K., Ch.A.I., B.I.R., G.M.M.

The argument of the appeal that the plaintiff suffers from coronary heart disease, which does not allow him to properly perform his labor duties, cannot serve as a basis for canceling the court decision, since it does not indicate that he has a lower labor productivity and therefore is subject to dismissal.

In this situation, the court of first instance reasonably satisfied the claims of the plaintiff and reinstated him at work ... "

Example 2

Determination of the Lipetsk Regional Court dated November 28, 2011 in case No. 33-3331/2011. (excerpt):

“... Under the circumstances set forth, considering also that the long-term work of the plaintiff K.L. at the Department of SRYaPM as an associate professor since 1998, testifies to its compliance with the qualification level of the position held, the court came to the correct conclusion that the qualifications of K.L. is higher in comparison with the qualification of FULL NAME25 and FULL NAME26, which was the basis for the use of the plaintiff's knowledge not only at the Department of SRYaPM, but also at the Department of Methods of Teaching Russian as a Foreign Language.

As established KL, working at the department, had a multiplier of 1.14, and the multiplier of FULL NAME25 and FULL NAME26 was 1.09.

As soon as it is rightfully established that the qualifications of K.L. is higher compared with the qualifications left at work FULL NAME25 and FULL NAME26 the court came to the correct conclusion that provided for by Article. 179 of the Labor Code of the Russian Federation, the pre-emptive right of the plaintiff to be left at work with a reduction in the number of employees was violated, in connection with which the dismissal of K.L. produced illegally and her demands are subject to satisfaction ... "

Therefore, the determination of the pre-emptive right to leave at work must be taken seriously, it is necessary to correctly determine the criteria by which employees will be compared. The employer's decision to keep an employee at work must be justified and documented.

3. Exemption of the employer from the obligation to take into account the pre-emptive right to leave at work.

We have already said above that sometimes an employer does not need to take into account the pre-emptive right to leave at work when laying off their employees. When can this happen?

For example, they cut 5 chefs out of 5 existing ones and 5 waiters out of 5 existing ones. Since the positions “cook” and “waiter” are excluded from the staff list, there are no staff positions left for these positions, the preferential right to remain at work among either cooks or waiters is not taken into account. This is confirmed by the existing jurisprudence on this issue.

Example 1

The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated January 20, 2015 in case N 33-18392 / 2014, 33-375 / 2015 (excerpt):

«… The appellant's argument in the complaint that his pre-emptive right to stay at work has been violated is not valid, since, according to the current labor legislation, the pre-emptive right to stay at work is examined by the employer if one of the same positions of a certain structural unit is subject to reduction, i.e. between workers occupying the same positions, some of which are subject to reduction, since the degree of labor productivity and qualifications of workers can only be compared by evaluating the performance of the same labor functions by them.

In this case, the position of "project manager" occupied by the plaintiff in the amount of three units was reduced, excluded from the staff list, and therefore there were no grounds for establishing persons with higher qualifications and labor productivity from the employer; the fact that these employees have been transferred to other positions does not entail the application of the provisions of Art. 179 of the Labor Code of the Russian Federation ... "

Example 2

The appeal ruling of the Moscow City Court dated January 16, 2015 in case No. 33-978/2015 (excerpt):

«… The Court of First Instance correctly pointed out that violations of the provisions of Art. 179 of the Labor Code of the Russian Federation on the part of the defendant is not available, since the defendant reduced all the positions of the leading auditors of the department of internal audit and control and audit work, and under such circumstances, the defendant did not have persons who worked in the same positions as the plaintiffs who were to be dismissed over which the plaintiffs could have a preferential right to remain at work ... "

Example 3

The appeal ruling of the Moscow City Court dated April 6, 2015 in case No. 33-6324 (excerpt):

“... the possibility of exercising the pre-emptive right to remain at work depends on the specific composition of persons subject to reduction, occupying positions similar in terms of qualification requirements.

It follows from the materials of the case that all positions of storekeepers and senior storekeepers were subject to reduction. Accordingly, there was no need to investigate the question of the preemptive right of the plaintiffs from the employer ... "

Thus, if all staff units of one position are subject to reduction, then it will not be possible to determine the pre-emptive right to leave a particular employee at work, since all staff units are reduced by position. And to compare employees to determine the pre-emptive right to leave at work, you need to have the same position. Some employees may still remain working for the employer due to transfer to another job (part 3 of article 81 of the Labor Code of the Russian Federation and part 1 of article 180 of the Labor Code of the Russian Federation). We will discuss the problem of determining the pre-emptive right to leave at work and transfer an employee to another job before dismissal, we will discuss below.

Important detail!

And if the position is completely reduced only in the structural unit, and in other structural units and / or in the parent organization the same position remains. Should the employer assess the preferential right to leave the employee at work in such a case?

We came across an interesting court decision in which the court considered that in such a situation it is necessary to evaluate the preferential right to remain at work among all the same positions of the entire organization.

Example.

The appeal ruling of the Supreme Court of the Republic of Khakassia dated August 11, 2015 in case No. 33-2020/2015 (excerpt):

“... when resolving O.'s initial claim for reinstatement, it was unconditionally established that the employer did not assess the presence or absence of advantages for leaving O. at work, although in fact the staff of the legal entity - the employer, were left grade N carpenters, accepted by transfer from the Vagonny section Abakan of the Yenisei branch of OAO FPC to the Krasnoyarsk Passenger Carriage Depot of the Yenisei branch of OAO FPC on orders dated DD.MM.YYYY and DD.MM.YYYY (case sheet 72-76).

The defendant's argument that the employee's preferential right to remain at work was not subject to assessment, since all units of joiners of the N category were reduced in connection with the abolition of the Abakan Carriage Section, the panel of judges finds unreasonable, since the employment of the released workers should be carried out within the framework of a legal entity, and not within the framework of the structural unit, which was the Abakan Carriage Section ... "

4. Commission in assessing the pre-emptive right to remain at work in case of reduction.

Since the assessment of labor productivity and the qualifications of workers is a laborious task, especially when many workers are to be laid off (mass layoffs), employers create commissions for this. These commissions, as a rule, are engaged not only in determining the preferential rights of employees to leave at work, but also in other matters during the reduction, for example, the offer of transfers, interaction with the trade union, with the employment center, etc.

And as practice shows, the creation of such a commission is not superfluous, including when determining the pre-emptive right to remain at work.

Example.

“... the possibility of exercising the preferential right to remain at work depends on the specific composition of the persons to be reduced and occupying positions similar in terms of qualification requirements. Evaluation of the quality of the work of the employee and his professional suitability is made by the employer.

As indicated above, by order of the defendant on July 17, 2014 N 120, a working commission was created to optimize the number of employees, including to resolve issues on the pre-emptive right to leave employees at work. According to the comparative characteristics of electricians attached to the case file for the repair and maintenance of electrical equipment of the 6th category of the power supply section of the chief power engineer of the UZhT, the defendant discussed four candidates K.V.N., K.A.L., P.V.M., G.A. YU. For these employees, the head of the personnel department of EVRAZ NTMK prepared certificates containing information about the specialty, position held, periods of employment, completion of advanced training courses, and incentives. In fact, they also assessed their observance of labor discipline, their state of health in relation to the characteristics of the production process reflected in the certification card, and the amount of work performed. According to the results of the work of the commission, the right to leave at work was recognized for employees with higher labor productivity and qualifications, excluding the plaintiff.

So, as you understand, the creation of a commission in determining the preferential rights of employees to remain at work in case of reduction is not superfluous. But make sure that the commission does not approach its work formally, but finds out all the significant circumstances necessary for this, and also determines this right for all employees to be laid off.

Example 1

The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated April 10, 2014 in case No. 33-4449/2014 (excerpt):

“...Checking the pre-emptive right, the employer proceeded from the timesheets and master reports, from the presence of three young dependent children, and also from the fact that in the date-date year M.A. most of all was on sick leave and on vacation, has the least number of days worked, according to the results of certification in the date of the year, he was not attested, recognized as inappropriate for his position, does not have a fixed area.

Meanwhile, the panel of judges finds that the meeting of the commission to determine the pre-emptive right of the date of the year was of a formal nature, the case materials do not contain information about which reports of the masters were examined by the commission. The opinion of the commission on granting Kh. and M.D. preferential to M.A. the right to leave at work is not motivated by anything (case file 59), so the basis of the decision is stated verbatim: "circumstances identified in relation to M.A. in the course of the discussion and related to the lack of preferential rights to leave at work."

The formation of M.A. was not discussed, it was not checked for what reasons the plaintiff did not have reports, while it was reliably established that any part of the forest was not assigned to the plaintiff and it was not possible for the plaintiff to submit reports. The representative of the State Budgetary Institution "Salavatskoye Lesnichestvo" did not explain to the court of appeal what the requirement to submit a report of the forest master in the absence of a fixed site is provided for.

According to Art. 179 of the Labor Code of the Russian Federation, when reducing the number or staff of employees, the priority right to remain at work is granted to employees with higher labor productivity and qualifications.

Labor legislation does not provide concepts of labor productivity and qualifications of workers, but according to established practice, labor productivity is understood as an indicator that characterizes the fulfillment of production standards, plans and specific tasks.

There were no plans, tasks for the plaintiff and other foremen of the forest; the case materials do not contain evidence for this.

Plaintiff being on sick leave, on vacation, which resulted in fewer days worked, does not indicate lower productivity…”

Example 2

The appeal ruling of the Supreme Court of the Republic of Bashkortostan dated March 28, 2013 in case N 33-3940/2013 (excerpt):

“... In accordance with the order of the branch ... N ... dated ... M.S.T. dismissed in connection with the reduction of staff from... under paragraph 2 h. 1 Article. 81 of the Labor Code of the Russian Federation. Appropriate entries made in the plaintiff's work book.

Satisfying the claims of M.S.T., the court reasonably proceeded from the fact that at the meeting of the commission, when deciding on the priority right to leave at work, 4 drivers of the 4th category were discussed, despite the fact that regular positions of drivers of the 4th category as of .. occupied by 6 drivers of 4 categories. Information regarding 2 more drivers - D.A. and K.Yu. was not presented at the committee meeting. This is not disputed by the parties.

In addition, when discussing this issue, the commission did not take into account the fact that the plaintiff had documents on education: a certificate ... of training in the period from ... to ... under the program a driver of category "B", "C", a certificate ... from ... to... under the "E" category driver program, certificate... of training from... to... under the "D" category driver program, Individual card on completion of training under the third class tractor driver-machinist program. .. from... the presence of a tractor driver-driver's certificate, as well as a certificate of training for drivers of vehicles carrying dangerous goods N ... from..., issued by...

The arguments of the representative of the defendant in the appeal that the employees left at work have higher labor productivity are untenable.

Thus, one of the legally significant circumstances in this dispute was the level of qualification of the plaintiff and other drivers left at work.

The court of first instance was presented with personal cards, diplomas, certificates of K.V., T.A., P.V. testifying to their qualifications and performance.

The panel of judges agrees with the conclusion of the court that it is not possible to conclude from the submitted documents that the qualifications of M.S.T. is below the qualifications of the remaining 5 employees.

The arguments of the representative of the defendant in the appeal that the plaintiff did not provide the relevant documents on education to the personnel department, and therefore, they were not reflected in the minutes of the meeting of the commission N ... dated ..., are untenable, since the absence of documents in the personnel department does not indicate that the plaintiff does not have the appropriate education.

Protocol N ... dated ... indicates the reason for the reduction of the plaintiff's lack of specialized (electrotechnical) education.

In addition, from the documents submitted by the defendant, it is seen that not all of the 5 drivers of the 4th category who remained to work at the enterprise have a specialized (electrotechnical) education.

In accordance with the norms of labor legislation, with equal labor productivity and qualifications, preference is given to families with two or more dependents.

As the court correctly established, the plaintiff has two minor children ... years of birth as dependents. Whereas the drivers of the 4th category who remained to work, according to the data presented by the defendant (K.V., T.A., K.Yu.), do not have minor children as dependents.

The court, assessing the materials of the case, came to the correct conclusion that when the plaintiff was dismissed, on the grounds provided for in paragraph 2 of Art. 81 of the Labor Code of the Russian Federation, the defendant violated the procedure for dismissal, since the priority right to remain at work was discussed by the non-authoritative composition of the commission, all working drivers of the 4th category were not considered, all the documents on education that the plaintiff had were not taken into account ... "

Important detail!

In the Labor Code of the Russian Federation there are no norms obliging the employer to create a commission to determine the pre-emptive right to leave the employee at work during the reduction and in general to carry out the reduction procedure. The employer does this on his own initiative. Workers sometimes refer in court to the fact that they were fired without a commission study of the pre-emptive right to remain at work. How do the courts look at such indignations of workers?

Example.

The appeal ruling of the Moscow Regional Court dated September 3, 2014 in case N 33-18683/2014 (excerpt):

“... Recognizing the plaintiff's argument about the violation of her pre-emptive right to remain at work as untenable, the court proceeded from the fact that during the trial, when checking the correctness of the defendant's application of the provisions of Art. 179 of the Labor Code of the Russian Federation, it is indisputably established that the plaintiff did not have higher labor productivity or qualifications compared to other employees, and she does not have the circumstances provided for in part two of this article.

The fact that the employer did not set up a commission to resolve the issue of determining the employee's priority right to leave at work, as the court correctly pointed out, does not give grounds for recognizing the dismissal as illegal, since it does not indicate that the plaintiff has the right to preferential leave at work ..."

But we should not forget that if in any local regulatory act or in a collective agreement (possibly in an employment contract with an employee) there are provisions obliging the employer to create such a commission when carrying out the procedure for laying off his employees, then he will have to do this. According to part 2 of article 22 of the Labor Code of the Russian Federation, the employer is obliged to comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, the terms of the collective agreement, agreements and employment contracts.

Also, the law does not say how the employer should formalize the results of the commission meeting when deciding on the priority right to leave at work. These questions are at the discretion of the employer.

Example.

The appeal ruling of the Irkutsk Regional Court of 08/05/2014 in case N 33-6336/14 (excerpt):

“... The arguments of the appeal of the plaintiff V.A. that there is no protocol of the commission meeting in the case file, in a comparative analysis of labor productivity and qualifications for (data taken) there are no signatures of all members of the commission, cannot lead to the annulment of the court decision, since the labor legislation of the Russian Federation does not contain mandatory requirements for form and content documents when the employer makes a decision on whether employees have a preferential right to leave at work ... "

But this does not mean at all that the issue of proper formalization of the commission's decisions should be approached negligently. After all, in the event of a dispute, it is the employer who will have to prove his case and bring the available documents to the court. And when the documents are drawn up correctly, they contain all the necessary information, they are issued by an authorized person, then there is more chance that these documents will be accepted by the court as proper evidence.

5. Preferential right and transfer of an employee who was wanted to be laid off to another job.

Many people know that before dismissal for reduction, the employer must offer a transfer to another job (if there are vacancies).

According to part 3 of article 81 of the Labor Code of the Russian Federation, dismissal on the grounds provided for in paragraph 2 of part 1 of article 81 of the Labor Code of the Russian Federation is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or a job corresponding to the qualifications of the employee , and a vacant lower position or lower-paid job) that the employee can perform, taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Employees sometimes think that the priority right to stay at work is also evaluated during the transfer, among those employees who are supposed to be fired. However, the transfer is offered specifically to those employees who, after assessing the pre-emptive right, do not remain in their previous job. And once again, the employer is not obliged to evaluate such a right when transferring. This is also confirmed by judicial practice.

Example 1

The appeal ruling of the Saratov Regional Court dated April 23, 2015 in case N 33-2354 (excerpt):

«… However, Art. 179 of the Labor Code of the Russian Federation regulates the issue of the preemptive right to remain at work, the same concept as the preemptive right to occupy a vacant position is not in labor legislation, i.e. the right to decide which of the laid-off employees to offer to fill a vacant position (including a newly created one) belongs to the employer, and therefore the court cannot enter into an assessment of the legality of the actions of the administration, which can be performed only at its discretion. The provisions of Art. 179 of the Labor Code of the Russian Federation on the preferential right to leave at work are applied only when the employer decides to leave only a part of several identical positions, and reduce the rest ... "

Example 2

Determination of the St. Petersburg City Court dated September 12, 2011 N 33-13826 / 2011 (excerpt):

“... As stated above, the provisions of Art. 179 of the Labor Code of the Russian Federation are to be applied in cases where the issue of leaving employees holding the same positions at work is resolved.

In turn, the labor legislation does not contain norms that would determine the category of persons who have the pre-emptive right to be transferred to a vacant position.

Thus, resolving the issue of which of the dismissed employees to give preference to when transferring to a vacant position is the prerogative of the employer ... "

Of course, it is advisable for the employer to leave the best of the employees who agreed to the transfer. But here, as can be seen from the above examples, the employer decides for himself who to leave and already without applying Article 179 of the Labor Code of the Russian Federation. Thus, we can conclude that the pre-emptive right is assessed only when the employee leaves at a previous job

6. Assessment of the pre-emptive right to stay at work.

So we come to one of the important questions when considering this topic - how to actually assess which of the workers has greater labor productivity and qualifications?

For information.

Labor productivity- measure (measurement) of labor efficiency. Labor productivity is measured by the amount of output produced by an employee per unit of time (https://ru.wikipedia.org/wiki/Labor_Productivity).

According to part 1 of article 195.1 of the Labor Code of the Russian Federation employee qualification- the level of knowledge, skills, professional skills and work experience of the employee.

The following conclusions of the Bryansk Regional Court are also of interest here.

“...At the same time, the legislation does not fix any specific list of documents indicating higher labor productivity. Therefore, this legal fact is established on the basis of the cumulative assessment of the evidence. These may include data indicating the high quality of the work performed, the performance by the employee of important responsible tasks or a larger amount of work compared to employees occupying similar positions or performing work in the same profession and the same degree of complexity. In the absence of direct evidence of a higher productivity of a particular employee compared to another employee, indirect evidence of this legal fact may also be taken into account. These may include data on rewarding an employee for high performance in labor.

Qualification is proved by documents on education, on advanced training, professional retraining ... "

Within the framework of this article, we will give several examples from judicial practice, from which it will become clear how employers evaluate the productivity and qualifications of an employee in order to determine the preferential right to leave one of the employees at work. These examples will help clarify the issue at hand.

Example 1

The appeal ruling of the Perm Regional Court dated March 18, 2015 in case No. 33-2557-2015 (excerpt):

“... In determining the priority right to leave M. or R. at work, the court of first instance reasonably took into account the following circumstances:

- M. repeatedly (2007, 2012) improved his professional qualifications (North-Western Institute for Advanced Studies of the Federal Drug Control Service of Russia; Ufa branch of the North-Western Institute for Advanced Studies of the Federal Drug Control Service of Russia). R. during his service in the drug control authorities raised his professional qualifications only once in 2010 (North-Western Institute for Advanced Studies of the Federal Drug Control Service of Russia).

- In the period from 2006 to 2012, M. was included in the reserve for promotion to senior positions of deputy head of the organizational and inspection department, head of the organizational and inspection department. R. during the period of service in the drug control authorities was not included in the specified reserve.

- M. has a greater length of service (experience) in the drug control authorities, unlike R. In 2012-2013. M. was involved in the performance of the duties of an assistant in charge of the duty officer of the organizational and inspection department of the department. R. did not fulfill the duties of an assistant to the responsible duty officer of the organizational and inspection department of the department.

- R., unlike M., did not pass physical training tests, while in accordance with paragraph 2 of the Program for operational-combat and physical training of drug control officers, approved by Order of the Federal Drug Control Service of Russia dated December 23, 2006 N 439 / DSP, operational-combat and physical training of employees of drug control bodies is an integral part of their professional training and is carried out in order to improve professional knowledge, skills and abilities necessary for the performance of official duties.

In view of the above circumstances, the court came to the correct conclusion that M. had a preferential right to remain at work, taking into account higher qualifications ... "

Example 2

The appeal ruling of the Moscow City Court dated March 6, 2015 in case No. 33-7249 (excerpt):

“... It follows from the materials of the case that when assessing the preemptive right among employees subject to dismissal in case of staff reduction, all significant circumstances were taken into account.

So, employees M.V., M.O. and A.A. occupied positions ..., while, unlike the indicated employees, M.V. did not have a specialized higher education, had the least work experience and work experience in the specialty, worked remotely, and therefore preference was given to the employees of M.O. and A.A.

The provisions of Art. 179 of the Labor Code of the Russian Federation are equally aimed at protecting the rights of an employee with the best performance in work, giving the latter an advantage over other employees holding similar positions, and the employer’s rights to continue labor relations with the employee, using whose labor he will be able to achieve the highest the results of their activities.

Thus, the actions of the defendant, who made the decision to dismiss M.V., who, as established by the court, has no advantages over other employees, cannot be recognized as illegal or unreasonable ... "

Example 3

Appeal ruling of the Altai Regional Court dated June 25, 2014 in case N 33-5142/2014 (excerpt):

“... The plaintiff has a higher education in the specialty "Organization Manager", as well as secondary specialized education in the specialty "Economics, Accounting and Control" (case sheets 11-14).

Meanwhile, an employee of the company PNKh, holding a position similar to that of the plaintiff, has only a specialized secondary education in the specialty "Accounting" (vol. 1 case sheet 39).

Therefore, the Judicial Board considers that the plaintiff C.A.M. had a preferential right to remain at work in relation to P.N.Kh., whose level of education, and, accordingly, the qualifications are lower. Evidence that P.N.Kh. had a higher labor productivity, the defendant is not represented.

The arguments of the defendant's complaint that the plaintiff's education does not correspond to his position, direction of work, are not supported by evidence.

At the same time, as follows from the case file, the employees left by the employer in a position similar to the one from which the plaintiff was dismissed also have an education in the specialty "Manager", which is confirmed by the list of employees of the logistics department dated 27.08.2013 (vol. 1 case sheet 39).

Given the higher qualifications of the plaintiff in comparison with another employee of the organization left at work, the arguments of the defendant's complaint that the plaintiff has disciplinary sanctions as grounds for his immediate dismissal due to staff reduction in accordance with the provisions of the collective agreement are not accepted as contrary to the law ... "

7. Evaluation of other criteria with equal labor productivity and qualifications

So, having assessed the productivity of labor and the qualifications of workers subject to layoffs, it may turn out that no one can be given preference according to these criteria.

But the law here goes to the aid of the employer and says that with equal labor productivity and qualifications, preference is given to staying at work (part 2 of article 179 of the Labor Code F):

family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);
persons in whose family there are no other self-employed workers;
employees who received an industrial injury or occupational disease during the period of work with this employer;
invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
employees who improve their skills in the direction of the employer on the job.

The main thing here is not to violate the principle of the prohibition of discrimination in the sphere of labor, enshrined in Article 3 of the Labor Code of the Russian Federation. Recall this article.

Everyone has equal opportunities to exercise their labor rights.

No one may be limited in labor rights and freedoms or receive any advantages depending on sex, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, convictions, belonging or non-membership to public associations or any social groups, as well as from other circumstances not related to the professional qualities of the employee.

Establishment of differences, exceptions, preferences, as well as restriction of the rights of employees, which are determined by the requirements inherent in this type of labor established by federal law, or are due to special care of the state for persons in need of increased social and legal protection, or are established by this Code or in cases and in the manner prescribed by it, in order to ensure national security, maintain an optimal balance of labor resources, promote, as a matter of priority, the employment of citizens of the Russian Federation and in order to solve other problems of the domestic and foreign policy of the state.

Persons who believe that they have been discriminated against in the sphere of labor have the right to apply to the court for the restoration of violated rights, compensation for material damage and compensation for moral damage.

Sometimes employees mistakenly believe that labor productivity and qualifications should be taken into account in conjunction with other criteria that give advantages to staying at work, which are listed in Part 2 of Article 179 of the Labor Code of the Russian Federation. But this delusion of workers does not find support in the judiciary. Here the approach is unambiguous - part 2 of article 179 of the Labor Code of the Russian Federation is applied only after the application of part 1 of article 179 of the Labor Code of the Russian Federation, that is, when the labor productivity and qualifications of the compared workers turned out to be equal.

Example 1

The appeal ruling of the Sverdlovsk Regional Court dated 03.03.2015 in case N 33-2914/2015 (excerpt):

“... As indicated above, by order of the defendant on July 17, 2014 N 120, a working commission was created to optimize the number of employees, including to resolve issues on the pre-emptive right to leave employees at work. According to the comparative characteristics of electricians attached to the case file for the repair and maintenance of electrical equipment of the 6th category of the power supply section of the chief power engineer of the UZhT, the defendant discussed four candidates K.V.N., K.A.L., P.V.M., G.A. YU. For these employees, the head of the personnel department of EVRAZ NTMK prepared certificates containing information about the specialty, position held, periods of employment, completion of advanced training courses, and incentives. In fact, they also assessed their observance of labor discipline, their state of health in relation to the characteristics of the production process reflected in the certification card, and the amount of work performed. According to the results of the work of the commission, the right to leave at work was recognized for employees with higher labor productivity and qualifications, excluding the plaintiff.

In this case, the correctness of the application of the criteria for assessing the productivity and qualifications of an employee was verified by the judicial board, there are no grounds to disagree with the conclusions of the employer that the plaintiff does not have a preferential right to remain at work. The actions of the defendant, who made the decision to dismiss K.V.N., who, as established, has no advantages over other employees, cannot be recognized as illegal or unreasonable.

In this case, the plaintiff's arguments that he had a preferential right to remain at work, provided for in Art. 179 of the Labor Code of the Russian Federation, as for an employee who has a dependent spouse who is unable to work (retirement by age), since this rule applies only with equal labor productivity and qualifications ... "

Example 2

The appeal ruling of the Yaroslavl Regional Court dated October 29, 2012 in case N 33-5902/2012 (excerpt):

“... As can be seen from the case, both K. and FULL NAME1 have a 6th category, both carry out planned tasks. Thus, the employer needed to investigate the issue of labor productivity of these workers.

From the letter addressed to the commission on job cuts, signed by the site foreman and the lead specialist, it is clear that the productivity of each worker is difficult to compare, since they process different parts. (ld 49) At the same time, the output for 2011 in monetary terms from FULL NAME1 is higher than that of FULL NAME1 (ld 50)

In addition, the Commission as labor productivity were taken into account "unproductive loss of working time", the rate of which FULL NAME1 is less than 10.4%, and the plaintiff - 26.92%.

This circumstance was pointed out in the court of first instance by the representative of the defendant with reference to certificates of labor productivity of these employees, from the content of which it is seen that by "non-productive loss of working time" the employer means that the employee is on sick leave and time off, i.e., in fact, absence from work for a good reason.

Meanwhile, according to the Court of Appeal, labor productivity should be understood as the quantitative aspect of work performance. In other words, the employer determines how much the employee manages to "earn" in a certain unit of time. At the same time, the quality indicators of his work are also taken into account.

In view of the foregoing, the panel of judges believes that such an indicator as "unproductive loss of working time" cannot characterize the productivity of an employee.

Thus, the panel of judges believes that during the consideration of the case, the lower labor productivity of the dismissed employee was not confirmed by the employer, and therefore, given the equal qualifications of FULL NAME1 and K., the employer should have discussed, in relation to these employees, the criteria set out in paragraph. 2 tbsp. 179 of the Labor Code of the Russian Federation - the presence of dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood); the absence in the family of other workers with independent earnings; work injury or occupational disease, etc.

As follows from the case, K. is dependent on a minor son suffering from a disease, the plaintiff's wife does not work, as she takes care of the above child; during the period of work with the defendant K. got an occupational disease.

Meanwhile, the employer did not take into account the mentioned legally significant circumstances when deciding on the pre-emptive right. The minutes of the meeting of the commission on staff reduction indicated only that FULL NAME1 is the most proactive, has 6 thanks. (case sheet 48)

Under such circumstances, the panel of judges agrees with the conclusion of the court that K. has a preferential right in comparison with FULL NAME10 to be left at work ... "

Example 3

The appeal ruling of the Rostov Regional Court dated January 15, 2015 in case No. 33-214/2015 (excerpt):

“... In this case, the plaintiff's arguments about her pre-emptive right to remain at work, provided for in Art. 179 of the Labor Code of the Russian Federation, as for an employee who has two minor children as a dependent, since this rule applies only with equal labor productivity and qualifications ... "

8. Do not forget about the collective agreement.

According to part 3 of article 179 of the Labor Code of the Russian Federation, a collective agreement may provide for other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications.

If the employer does not take into account the provisions of the collective agreement and dismisses the employee who is given the pre-emptive right to stay at work in the collective agreement, then he can see the dismissed employee again when he is restored to his previous job.

Example.

The appeal ruling of the Bryansk Regional Court dated 06/20/2013 (excerpt):

“...According to the Law, only with equal labor productivity and qualifications, other circumstances acquire legal significance: the presence of two or more dependents, the absence of other workers in the family with independent earnings, etc. (part 2 of article 179 of the Labor Code of the Russian Federation).

According to the Collective Agreement, preference is given to single mothers with dependent children under 16 years of age.

The defendant determining the pre-emptive right FULL NAME9 also referred to the presence of her dependents of two minor children.

However, Art. 179 of the Labor Code and the Collective Agreement gives preference only to those persons with minor children who raise children on their own, in the absence of other employees with independent earnings in the family.

Ch., in the opinion of the board, does not have such an advantage, because. married and her husband receives a pension as a former police officer, which is clear from the declaration submitted by Ch. in her personal file, i.e. she is not the only breadwinner in the family.

On the above grounds, the judicial board cannot agree with the court's decision to refuse reinstatement of the plaintiff. It is subject to cancellation.

The panel of judges comes to the conclusion that there was a violation of the procedure for dismissing the plaintiff and, as a result, about her reinstatement at work in the position of senior state customs inspector of the personnel department at the Bryansk customs ... "

Therefore, before carrying out the reduction procedure, look at the collective agreement (if any) and study its provisions. Suddenly there will be an additional list of persons who have the preferential right to remain at work with equal labor productivity and qualifications. Then these provisions of the collective agreement must be applied.

9. Collective agreement and law

When determining the preferential right to remain at work, one employee may have an advantage by virtue of part 2 of article 179 of the Labor Code of the Russian Federation, and the other by virtue of a collective agreement on the basis of part 3 of article 179 of the Labor Code of the Russian Federation (with equal labor productivity and qualifications). In this case, both employees will enjoy advantages over other employees.

Example.

Cassation ruling of the Tyumen Regional Court dated November 15, 2010 in case N 33-4913/2010 (excerpt):

“... The court correctly pointed out that when deciding on the dismissal of the plaintiff, circumstances were not taken into account indicating a preference for staying at work by virtue of the law - part 2 of article 179 of the Labor Code of the Russian Federation

As follows from the minutes of the meeting of the commission to reduce the number of FPS dated March 30, 2010, preference was given to accountants FULL NAME46 who also do not have higher education, but who have benefits on the basis of clause 8.5 of the Collective Agreement.

According to clause 8.5 of the Collective Agreement, when reducing the number or staff of employees with equal labor productivity and qualifications, preference in leaving at work is given to an employee with a long work experience at a postal enterprise who has less than three years left before reaching retirement age (vol. 1, l.d. .97).

From the work book FULL NAME47. it follows that she is 54 years old, has been working at the Federal Border Guard Service since March 30, 2005 (vol. 2, pp. 72 - 77).

FULL NAME48 has been working in the postal industry since 1992 (case file 115, volume 1), as an accountant of the 1st category - since March 1, 2009 (volume 1, case file 168).

Giving preference to leaving at work for employees with a long work experience at a postal enterprise, the defendant did not take into account the provisions of paragraph two of Article 179 of the Labor Code of the Russian Federation, from the content of which it follows that, with equal labor productivity and qualifications, preference in leaving at work is given not only to those categories of persons who enjoy the priority right to remain at work in accordance with the collective agreement, but also to those categories of persons that are provided for by law, including: family - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance, which is their permanent and main source of livelihood); persons in whose family there are no other self-employed workers and other categories of persons provided for by law.

When considering the dispute, the court established, and this is confirmed by the case materials, that the plaintiff's family has no other employees with independent earnings, she is a widow, has two dependent children who are full-time university students (a son is a 2nd year student and a daughter is a graduate student), who do not have their own regular income.

Under such circumstances, the conclusion of the court that the employer violated the procedure for dismissing the plaintiff in connection with the reduction in staff is lawful and justified ... "

10. The preferential right to leave at work and the prohibition on dismissal at the initiative of the employer

The fact is that the Labor Code of the Russian Federation contains a number of norms, by virtue of which it is prohibited to dismiss employees at the initiative of the employer.

According to Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of an organization or termination of activity by an individual entrepreneur.

According to part 4 of Art. 261 of the Labor Code of the Russian Federation “Termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without mother, with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of eighteen or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (other legal representative of the child) is not in an employment relationship, is not allowed at the initiative of the employer (with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of this Code)"

According to Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during his vacation.

Therefore, when employees are selected who are subject to redundancy, all these norms that we have given above and the norms on the pre-emptive right to remain at work (Article 179 of the Labor Code of the Russian Federation) should be applied in aggregate. You can't break any of them.

As a rule, an appropriate commission is created for the observance of all these norms by the employer (we have already described in detail about its work).

Example 1

The appeal ruling of the Omsk Regional Court dated May 7, 2013 in case N 33-2798/2013 (excerpt):

“... 10/18/2012, the employer held a meeting of the commission to determine the pre-emptive right to leave at work to reduce staff, as a result of which it was concluded that _ is not subject to dismissal as having a child under the age of _ years (Article 261 of the Labor Code of the Russian Federation), leaving at work, _ is subject to reduction, A is subject to reduction.

When considering the issue of the priority right to leave at work, the commission studied the personal files of A. and _, compared their professional qualities, labor productivity by comparing the percentage of their implementation of the main planned indicators ... "

Example 2

Appeal ruling of the Vologda Regional Court dated March 27, 2014 N 33-1342/2014 (excerpt):

“...According to the protocol of the commission for determining the pre-emptive right to leave the employees of the institution in the service of July 31, 2013 and the comparison table of employees of FKU IK-1 of the Federal Penitentiary Service of Russia for the Vologda Region by position ..., K2., K3., C had the pre-emptive right to remain in the service ., P1., R. and B., who were either single mothers or mothers raising children under three years old and dismissed by virtue of Art. 261 of the Labor Code of the Russian Federation were not subject.

Therefore, the conclusion that V. has no such right was made correctly by the court, the norms of Art. 179 of the Labor Code of the Russian Federation were not violated by the defendant ... "

Thus, do not forget to study the documents that will confirm not only the presence or absence of the employee's preferential right to leave work, but also the presence or absence of a ban on dismissal at the initiative of the employer.

Let's summarize:

The possibility of exercising the pre-emptive right to remain at work depends on whether all staff units in the position are reduced or other employees will still work in this position. That is, whether the employer will choose employees who will remain working in this position or there will be no such choice, because the position has been completely reduced.

The employer is not obliged, by virtue of the provisions of the Labor Code of the Russian Federation, to create a commission to study the issue of the pre-emptive right to leave the employee at work during a reduction, although he has the right to do so.

When evaluating the pre-emptive right to remain at work in case of reduction, labor productivity and the qualifications of workers subject to redundancy are first compared.

With equal labor productivity and qualifications of employees subject to redundancy, Part 2 and Part 3 of Article 179 of the Labor Code of the Russian Federation are subject to application.

The pre-emptive right is assessed only when the employee leaves at a previous job rather than transferring to another job.

Also, one should not forget about the norms, by virtue of which it is forbidden to dismiss employees at the initiative of the employer. These rules are applied in conjunction with the rules on determining the pre-emptive right to leave an employee at work. Neither one nor the other should be violated.

The employer is responsible for proving the legality of the dismissal of an employee under clause 2, part 1, article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees of an organization, individual entrepreneur). Therefore, it is also the employer's responsibility to prove that employees who were laid off for redundancy did not have the preferential right to remain at work.

P.S. Article editorially published in the journal "HR practitioner" (№7, 2015)

A.S. Pozdeev

labor dispute lawyer, Volgograd

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Job loss is the biggest problem that can be caused by the financial and economic crisis. To get out of a difficult financial situation, organizations resort to optimizing the production process. As part of the optimization, staff reductions are often made. Who can't be made redundant? What rights does a reduced employee have? What is the responsibility of the leadership of the organization?

What is downsizing?

Employees is a procedure for the abolition of positions (one or more), carried out in accordance with labor legislation. One of the methods of reducing units is the elimination of vacancies. The staffing table is the main evidence confirming the fact of a reduction in the number of employees. If the organization does not have a staffing table, then the payroll or list of employees can also act as a supporting document.

Legal downsizing

Russian labor legislation regulates the procedure and determines the grounds for layoffs. So, the employer can dismiss employees due to a reduction in the number of staff units, reorganization or liquidation of the enterprise. At the same time, the employer himself determines the optimal number of employees of the organization. By law, the employer is not obliged to justify the decision to dismiss an employee for reduction, however, formally, the procedure should be carried out on the basis of the Labor Code of the Russian Federation (Articles 82, 179, 180, 373). It is possible to dismiss an employee of an organization due to a reduction in the number of employees only when the position he occupies is liquidated.

Wrongful downsizing

In practice, there is often an illegal (imaginary) staff reduction, which has no real reasons. This procedure is illegal. Employers resort to this method when they need to fire an employee, but there are no real reasons for this. If the procedure for terminating contracts is carried out incorrectly or if it is not observed, the reduction is also considered unlawful. The rights of the dismissed person in this case can be defended in court. However, in practice it is quite difficult to convict employers of illegal actions.

How to get fired

This procedure consists of several stages.

The launch of the procedure for reducing the number of employees must be formally confirmed by the relevant order and the approval of the new staffing table. In this case, the new schedule is approved before the start of the procedure itself. The dismissed will be those employees whose position was not preserved in the new staffing table.
regulates the next stage of the procedure. At least 2 months before the planned date of termination of employment contracts with employees, the employer must send a written notice to the trade union organization.
At least 2 months before the dismissal of employees due to staff reduction, the employer is obliged to notify the local employment service in writing. The notice must indicate the position, specialty, profession and qualifications of each individual employee. The employment service must be informed of the planned reduction in the staff of the organization at least 3 months in advance, if the procedure can provoke mass layoffs.
2 months before the scheduled date, the employer must inform his employees about the reduction against signature. When an employee refuses to sign the warning, the personnel department draws up an appropriate act.
The employer must offer employees an alternative - vacant positions in their own or other companies. If vacancies appear in the organization during the warning period, the employer must first of all offer them to employees who have been laid off. If vacancies appear in the organization within a two-month period, the manager notifies the laid-off employees about this and in no case accepts new ones. When selecting vacancies, the qualifications and state of health of the employee should be taken into account. With his consent, the transfer procedure starts. Similar vacancies are offered first. The management of the enterprise has the right to dismiss an employee without warning by prior agreement of the parties, which is drawn up in writing. In this case, the injured party is paid additional monetary compensation, the amount of which is not limited by law and depends only on the agreement on the spot.
The management of the enterprise publishes employees, where it indicates the date and reason for termination of the employment contract. Workers get acquainted with him under the signature. If the employee refuses to sign the order, an appropriate act is drawn up.
Dismissed employees are counted on the last working day, they issue a work book with a corresponding entry. When dismissing employees who are members of a trade union, the reasoned opinion of this organization should be taken into account (Article 81 of the Labor Code of the Russian Federation, as well as 82 and 373). Dismissal of persons under 18 is allowed with the consent of the state labor inspectorate and the commission for the protection of the rights of minors.

Who can't be fired

In Russian labor legislation, there is a list of those employees who cannot be fired due to staff reduction. Who can't be fired?

Women with children under 3 years of age.
Women on parental leave (Labor Code of the Russian Federation, Article 256).
Single mothers with children under 14 years old (if a disabled child - up to 18).
Persons raising children under 14 years of age without a mother (if a disabled child - up to 18, article 261 of the Labor Code of the Russian Federation).
Employees of organizations on vacation or sick leave.
Minors without the consent of the state labor inspectorate.

Also, according to the Labor Code of the Russian Federation (Article 256), parental leave can be granted until the child reaches the age of 3 at the request of the mother. The workplace and position in this case are reserved for the woman.

Can a pregnant woman be fired on the basis of a layoff? Such dismissal is considered illegal. As stated, dismissal is permissible only upon liquidation of the organization.

The only exceptions are cases where the reduction takes place as part of the liquidation of the enterprise.

Who has the benefits

In addition to the list of those who cannot be fired due to staff reduction, the Labor Code also includes such a concept as “preferential right”. According to Article 179 of the Labor Code, this right gives employees of organizations an advantage in retaining their jobs during staff reductions, depending on the quality of their work duties or social reasons. These workers are the last to leave.

Employees with a high level of qualification and labor productivity have a preferential right. Work experience and education are also taken into account. Qualification must be confirmed by documents on graduation from educational institutions, certificates of advanced training, extracts from the protocols of commissions on assignment of a category or category, etc. To assess the level of qualification of employees, the management of enterprises can conduct certification, including unscheduled. However, the procedure for conducting such certifications should be reflected in the internal documents of the organization. If all employees have equal qualifications and labor productivity, the manager makes a decision on dismissal together with the trade union organization.

Employees also have the priority right to retain their jobs:

Containing two or more dependents (family circumstances).
Who independently support their family (there is no other source of income other than the salary of this employee).
During the period of fulfillment of labor obligations, injuries or occupational diseases from the employer conducting the reduction.
War invalids.
Improving qualifications without interruption from the labor process in the direction of management.

The collective agreement may also establish other categories of employees with the preferential right to retain their jobs.

Features of dismissal to reduce pensioners

Often people who have reached retirement age also work in Russian organizations. However, age is not the reason for the primary reduction. Article 179 of the Labor Code states that age can also be an advantage for an employee, since it can be an indicator of high qualification and productivity.

It says that pensioners should be provided with all guarantees and payments upon dismissal for reduction. Other interpretations of these legislative norms contradict the principles of equal rights of workers and non-discrimination in the sphere of work.

Reduction payouts

According to 140, when terminating an employment relationship with an employee, the management of the organization must settle with him and pay all the money due. Payments must be made after the employee submits the relevant request no later than the next day.

If an employee is fired due to a reduction in staff, he necessarily receives a severance pay, the amount of which is equal to the average earnings for the month. Within two months, the employee is paid severance pay while looking for a suitable job. This payment can also be made for the third month if the dismissed employee applies to the employment service within 14 days after the termination of the employment contract and does not find a suitable job.

Additional compensation is paid to employees who were laid off without warning and in agreement with the employer. The amount of the payment is determined by the amount of the average monthly earnings, calculated in proportion to the time left before the expiration of the notice of reduction. Pensioners, as mentioned above, are paid all compensation, as well as ordinary workers. The head, his deputies, the chief accountant are paid compensation in the amount of at least three average monthly salaries.

In addition, employees who are dismissed due to staff reductions are entitled to payment for the days worked in the current month and compensation for unused vacation days.

The amount of the severance pay can be disputed. In this situation, the organization pays the employee an undisputed part of the amount. The remaining part is paid on the basis of an agreement between the employee and management or by a court decision.

Alternative

An alternative to the dismissal of employees for reduction is the termination of labor relations by agreement of the parties. First of all, this is beneficial for the employer, since he is exempted from paying additional compensation and severance pay, the likelihood of appealing the procedure in court is minimized, and there is no need to notify the trade union, the employment service. In addition, the list of those who cannot be fired due to staff reduction does not apply to this procedure.

It is not uncommon for employers to force their employees to resign of their own free will. Thus, the employee is also deprived of severance pay and compensation, which he is entitled to during the reduction.

Employer's responsibility

Employers are liable in case of violation of the rules of the procedure for dismissal of employees in the event of a reduction in the number of staff. In case of violation of the terms of payments, according to Article 236 of the labor legislation, the employer is obliged to reimburse, in addition to the entire amount of money due to the employee, interest amounting to at least one three hundredth of the refinancing rate of the Central Bank of Russia for each day of delay. The same sanctions apply to employers in case of delay in payment of wages. If the employer does not fulfill the obligation to provide the dismissed employees with vacant positions available at the enterprise, this threatens him with a fine in the amount of 5-50 times the minimum wage in accordance with Article 5.27 of the Administrative Code.

What to do when cutting

If you were fired for a reduction, what to do? You can contact several authorities. To get started, you can send a written application to the trade union organization of the enterprise. The trade union is obliged to respond to the complaint within a week. A wrongful layoff incident may be reviewed by the Federal Labor Inspectorate and the Attorney's Office. If the labor inspectorate did not reveal violations of the procedure, a lawsuit can be filed. This can be done within a 90-day period from the moment the employee became aware of the violation of their labor rights. If the dismissed employee decides to challenge the termination of the employment contract, the claim must be filed within 30 days from the date of issue of the work book or a copy of the relevant order. Wrongfully dismissed employees do not pay duties and other legal expenses. If a redundancy dismissal is recognized as unlawful, the employee is reinstated at the previous workplace by the body that was authorized to consider the labor dispute. In this case, the employee is compensated for the average wage for the time of forced absenteeism or the difference for the period of low-paid work, as well as moral damage.

Dismissal due to a reduction in the number of employees in an organization can affect everyone. Therefore, it is so important to know the list of those who cannot be fired due to redundancy and who have a preferential right to retain their jobs. These issues are fully regulated by Russian labor legislation. The employer's decision to dismiss due to redundancy can be challenged both in court and by contacting the trade union, the prosecutor's office, and the Federal Labor Inspectorate. Russian labor legislation regulates the rights of a laid-off employee. If you have any difficulties, you should seek the help of a competent lawyer.

According to the Labor Code of the Russian Federation, the grounds for dismissal of an employee, initiated by the employer, may be a reduction in staff or the number of employees.

A reduction in staff means that a certain position is abolished, and all employees occupying it will be fired. The reduction in the number of employees is that the position remains, but the number of employees occupying it decreases. Both in the first and in the second case, the reduction process must take place in the prescribed manner, without violating the rights of the employee.

Reduction Notice

Having made a decision on the upcoming reduction, the employer in writing, at least two months before the start of layoffs, is obliged to notify the employee personally about this. The fact that the employee was given a notice of reduction properly will be evidenced by his signature on the letter.

The fact that the enterprise is preparing to reduce workers must be reported not only to those who fall under the dismissal, but also to the trade union organization and the employment service. The deadline for notifying the elected body of the primary trade union organization is the same as for the employee, i.e. no later than two months before the start of the cuts, and in case of mass layoffs - three months.

It is possible to dismiss members of a trade union in connection with a reduction only with the consent of the trade union organization. The deadline for notifying employment services about a future reduction is the same - two months before the start of measures to dismiss workers.

For employers working as individual entrepreneurs, this period is two weeks. In his appeal to the above bodies, the employer must indicate full information about the position, qualifications and working conditions of each dismissed employee.

Guarantees for laid-off workers

According to the law, reducing the number of employees or staff, the employer must offer the dismissed employees a different position at this enterprise.

At the same time, the proposed position must correspond to the qualifications of the employee, his state of health, however, it can be both lower and lower paid. In case of reduction, the employee has the right to receive from the employer data on all vacancies that are in the given area or, if provided for by the collective agreement, outside it.

And only on condition that the employer cannot fulfill its obligations to the employee to provide him with a free vacancy, or the employee refused to provide written consent to the proposed job, a reduction can be made.

If the parties have reached an agreement, there is no need to wait for the end of the two-month term to terminate the employment contract.

Priority right to stay at work in case of staff reduction

The guarantees established by the legislation for laid-off workers also include the right of pre-emption in case of being left at work in case of reduction. This right lies in the fact that the employer will have to leave at the enterprise the employee whose qualifications are higher and the quality of work is better than that of others.

If there are several such employees, then according to the legislation, the following categories have the right to retain their position:

- employees who support two or more disabled family members;
- workers whose earnings are the only source of income for the whole family;
- employees who, while working at this enterprise, received an injury or occupational disease;
- invalids of the Great Patriotic War and invalids who took part in military operations to protect the state;
- employees who improve their skills at the place of work in the direction of the employer.

The collective agreement, which is drawn up at the enterprise or organization, may contain an extended list of categories of employees who have the preferential right to remain at work in case of redundancy.

In addition, the Labor Code of the Russian Federation protects against contraction pregnant women, mothers who are raising children under three years of age, single mothers raising children under the age of fourteen, or a disabled child under eighteen, as well as those who are raising the listed categories of children.

Can't be fired and employees who are on vacation or on sick leave at the time of reduction due to temporary disability. In case of violation of this rule, the employee has the right to appeal the dismissal in court and be reinstated in his previous position.

This must be done within one month from the day the employee received a copy of the dismissal order or from the moment the work book was issued. Otherwise, you will have to restore the missed period in court. According to the Code of Civil Procedure, the prosecutor must make his opinion on the issues of reinstatement, he can also appeal the court decision.

Employee's right to severance pay

An employee with whom an employment contract was terminated due to a reduction in staff or headcount, has the right to receive severance pay from the employer. The amount of the allowance should be equal to the average monthly earnings during the period of work at the enterprise or organization.

The average monthly salary must be retained by the employee who has lost his job for the entire time it takes to find employment, but no more than two months from the date of dismissal. Severance pay can also be paid in the third month after the dismissal, but only if, after the reduction, the employee registered with the employment service and for two weeks they could not find a new job for him.

An employment or collective agreement may stipulate increased amounts that are paid to employees in the event of a reduction. For those who work in the Far North or areas with the same status, labor legislation determines longer terms for paying severance pay in the event of a reduction.

For unworked days leave due to layoffs, deductions from wages are not allowed.

As you can see, the state protects citizens from unreasonable layoffs, establishes compensation in case of job loss, and gives citizens the opportunity to challenge their dismissal.

What to do after receiving a layoff notice?

Do nothing in the first minutes and even hours. Any legal documents should be taken into account with a calm mind.

Read the notice of reduction carefully. Pay attention to the dates, bank details, the signature of the head.
Read the list of vacancies for which you can apply in case of reduction. It must also be certified by the signature of the head of the enterprise.
Find out if the trade union committee has agreed to the reduction.
Sign the documents and work quietly for more than 2 months, if you agree and do not belong to one of the following categories of citizens:
- pregnant woman;
- a woman (or other person) raising a child under 3 years of age;
- a single parent (or other person) raising a child under 14 years old, or up to 18 years old if the child is disabled;
- sole breadwinner in a family with 3 or more children.

You can agree in writing with the administration's proposal for early dismissal. In this case, you are paid the average salary for the remaining period and all other money due to the reduction.

Can I not sign a redundancy notice?

Yes, you can. The countdown will only start from the moment you sign the notice of reduction. If the document does not contain the signature of the head or the date of familiarization, it cannot be signed.

Also, if you do not agree with the actions of the management or belong to one of the categories of citizens listed above, you can file a lawsuit with the labor dispute commission without signing any document.

The employer may ask you to state in writing the reasons for refusing to sign the documents. Write explanations in duplicate, get your copy certified by the secretary. This document can also testify in court, both in your favor and in favor of the head of the enterprise.

But you can opt out of these actions. If you disagree again, the administration has the right, in the presence of witnesses, to draw up an act reflecting the fact of a warning about the reduction and your refusal to sign.

If the commission on labor disputes decides the case is not in your favor, the countdown of the 2-month revision will begin from the day the act is drawn up. Further, the employee has the right to apply to the people's court ( Art. 201 Labor Code of the Russian Federation).

Woman gets pregnant after signing redundancy notice

In the Labor legislation of the Russian Federation it is clearly indicated that termination of an employment contract with a woman who is in a state of pregnancy is not allowed, with the exception of the complete liquidation of the organization. The same rights are enjoyed by a woman who has already signed a notice of reduction and after that she learned that she was expecting a child.

There can be no question of any preferential right in case of staff reduction, she cannot be fired at all. A woman has this right only if she submits a medical certificate of pregnancy before dismissal (within two months).

You must write a statement indicating the reason why you are requesting the suspension of the reduction order with a note that a copy of the document (medical certificate) is attached.

The application is written in two copies. One is served on the table to the head, the other is certified by the secretary and kept by you.

If the employer does not agree to revoke the layoff order, the certified statement will be your evidence in court to provide information to the administration about the pregnancy.

It must be remembered that an employee who has learned about a violation of his rights must apply to the court within a month from the date of dismissal (not the day the order for dismissal is signed) or the work book is handed over (against signature).

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