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Benefits for layoffs due to redundancy. Preemptive right in case of reduction. Establishing an assessment of skill levels

Preemptive right in case of reduction state assumes that the employer cannot reduce the employee, guided only by its own discretion. The law establishes the rules by which the selection of candidates for reduction is made. Let's consider them in detail.

Preemptive right in case of staff reduction (general rules for determining)

The algorithm for determining the priority right to leave employees at work in the event of a staff reduction involves the following steps:

Employees who cannot be laid off are excluded from the possible candidates for dismissal due to layoffs. These include those listed in Art. 261 of the Labor Code of the Russian Federation persons: pregnant women, mothers of children under 3 years old, single mothers with a child under 14 years old and some others. It is also forbidden to reduce employees who are on maternity leave (part 4 of article 256 of the Labor Code of the Russian Federation, part 6 of article 81 of the Labor Code of the Russian Federation)
The qualifications and the level of labor productivity of candidates for reduction are compared. You need to compare the qualifications of employees whose positions are the same and created in the same structural unit. So, it would be right to compare the qualifications of two leading accountants of the same department, incorrectly - the leading accountant and the accountant of the 2nd category (appellate ruling of the Moscow City Court dated 06.08.2015 No. 33-27711 / 2015). The same applies to the evaluation of labor productivity.
If, according to the results of comparing productivity and qualifications, these parameters turned out to be the same, one should proceed to the determination of family and other circumstances that give an advantage in case of reduction.

Important: if a position is completely liquidated or all staff units of one position are reduced, no benefits are determined (see appeal ruling of the Moscow City Court dated January 22, 2015 No. 33-1708).

We determine the pre-emptive right in case of reduction by evaluating qualifications

The first criterion for selecting candidates for reduction is the level of their qualifications, since, by virtue of Part 1 of Art. 179 of the Labor Code of the Russian Federation, it is precisely workers with a higher level of qualification and the highest labor productivity that are subject to being left at work when the organization's staff is reduced. Qualification is determined by assessing the level of skills and knowledge of employees, as well as their work experience (Article 195.1 of the Labor Code of the Russian Federation). As a rule, such an assessment is carried out by examining documents confirming the work experience, the presence of professional and additional education, scientific titles, advanced qualifications, an academic degree, etc., as well as by analyzing the results of the worker's work.

So, for example, if both employees have the same education and experience, the lower qualification of one of them may be indicated by the presence of disciplinary sanctions for improper performance of official duties (appellate ruling of the Moscow City Court dated September 10, 2015 No. 33-32630 / 2015). Incentives for quality work are also taken into account when evaluating.

Don't know your rights?

Comparison of worker productivity

The second parameter evaluated when setting pre-emptive right in downsizing, — labor productivity, while there is no definition of productivity in the law. In practice, it is understood as an indicator of labor efficiency, the unit of measurement of which depends on the specifics of the employee's activity (for example, efficiency can be expressed in the quantity of products produced).

If the employer uses a labor rationing system and / or labor can be measured in quantitative terms (number of sales, number of products produced, etc.), then it is not difficult to determine productivity. In other situations, they resort to assessing the number of completed professional tasks for a certain period (requesting characteristics from managers, studying reports on work).

Who has the advantage in downsizing with the same productivity and qualifications?

The law (part 2 of article 179 of the Labor Code of the Russian Federation) defines the circle of employees who are given preference if the parameters discussed above turned out to be equal.

So, other things being equal, the advantage is:

Employees in whose family there are no other working persons (the only breadwinners of the family).
Employees with two or more dependents. For a family member to be recognized as a dependent, 2 conditions must be met:
- lack of ability to work (due to age or health status);
- receiving maintenance from an employee - a candidate for reduction (full or partial, but in any case being the main source of livelihood).
Workers who during their employment with this employer have received an occupational disease or injury at work.
Workers are invalids of the Second World War, as well as invalids of military operations in which they participated in the defense of the Fatherland.
Employees sent by the employer to improve their skills on the job.

Other circumstances providing redundancy privileges, can be established in collective agreements (part 3 of article 179 of the Labor Code of the Russian Federation).

How to better compare the performance of employees (practical recommendations)

The legislation does not contain specific requirements for the procedure for determining the benefits of staying at work in case of redundancy, but practice shows that the courts have more confidence in the procedure carried out by the commission with fixing the results in writing.

Let's list the main points:

As you can see, determining the benefits of employees is the most important procedure for downsizing, which must fully comply with the requirements of labor legislation. To reduce the risk of recognizing dismissals as illegal, the employer should carry out it carefully, reflecting the results of each stage in the documents.

When implementing measures to reduce the number of employees, the head of the organization must remember that highly qualified subordinates have a preferential right to remain in their positions at the enterprise. This rule is enshrined in Art. 179 of the Labor Code of the Russian Federation. If at the enterprise all employees have the same qualifications, then jobs should be reserved for family citizens with several dependents, as well as for those who were injured during their professional activities in the organization, war invalids and persons undergoing training in the direction leader without interruption from service.

What is important to know

Many citizens who are subject to staff reduction are wondering if they will be able to stay at work in their position if they have high qualifications, certain knowledge, experience and positive characteristics. Here we can say for sure that the head of the organization cannot dismiss such subordinates. Because the norm of Art. 179 of the Labor Code of the Russian Federation indicates that highly qualified employees have a preferential right to stay at the enterprise at their workplace.

In the event that the manager cannot independently determine the categories of subordinates who should be dismissed due to the reduction, then he needs to consult with the organization's lawyer and take into account the opinion of the trade union.

It is also necessary to remember that in the absence of employees with the highest labor productivity at the enterprise, preference should be given to family citizens who have several dependents, as well as persons who were injured during the performance of official duties, disabled veterans of the Second World War. This rule is fixed in Art. 179 of the Labor Code of the Russian Federation.

With the same performance

Subject to the provisions of Art. 179 of the Labor Code of the Russian Federation, the reduction should bypass the following categories of employees:

family people who are supported by two or more dependents (i.e., disabled citizens for whom the income of the breadwinner is considered the main income);
subordinates who received serious injuries at work while performing their official duties at this company;
family persons, if no one else in his family has a source of income (even able-bodied relatives of the latter);
disabled veterans of the Great Patriotic War and participants in military operations to protect the state;
persons who improve their qualifications in the direction of the chief on the job.

It is important.

How to determine

Art. 179 of the Labor Code of the Russian Federation in the new edition indicates that employees with very high or even better labor productivity and qualifications have the preferential right to remain in their positions during staff reductions. But how can you identify the people you want to keep at work in the organization?

Here it is necessary to carefully review the personal file of an employee who presumably falls under the reduction. If he has work experience, a good education, quickly performs the duties assigned to him and does not violate labor discipline in the organization, then, accordingly, he will not be fired. Otherwise, the latter will be reinstated at work in a judicial proceeding.

Necessary actions

The administration of the organization, together with the trade union, needs to carefully review the personal files of all subordinates who are supposed to be laid off. Moreover, if all employees have the same level of education and the same work experience in their specialty, then preference should be given to families with children, war invalids and those who were injured in the line of duty in this enterprise, because this rule spelled out in part 2 of Art. 179 of the Labor Code of the Russian Federation.

Other categories

The collective agreement of the organization may also include other citizens who have priority rights to remain in the organization. These include:

people of pre-retirement age, when there is very little time left before going on a well-deserved rest;
minor citizens;
subordinates who have been performing official activities at the enterprise for many years (15 or more);
specialists who are just starting their career (in the first three years of work);
employees raising a child under 16 years of age without the participation of the second parent.

A comment

Those employees who have very good labor productivity and high qualifications have the advantage in case of reduction. This is stated in Art. 179 of the Labor Code of the Russian Federation. It is impossible not to agree with her comments. Because it is these two criteria that allow the employer to decide on the choice of those employees who will not be dismissed on this basis.

If several subordinates fall under the reduction, one of whom has extensive work experience and a high level of qualification, then preference for remaining in office will be given to him, and not to other citizens.

In the event that all employees have the same knowledge and equal productivity, the company needs to save places for family people, war invalids, as well as those people who received injuries during the performance of their duties.

Typical mistakes of a leader

Most employers for some reason believe that with the help of layoffs, you can get rid of objectionable subordinates. Although this is not true at all. The latter can be reinstated in their positions in a judicial proceeding.

In addition, employees with good labor productivity and a sufficiently high level of education have an advantage over other subordinates who are laid off. This rule is fixed in Part 1 of Art. 179 of the Labor Code of the Russian Federation. And even if these citizens do not evoke sympathy from the boss, they still cannot be reduced without a proper assessment of their professional qualities. Moreover, they must be under the protection of the trade union committee.

Carrying out the procedure

The employee must be warned about the upcoming reduction in advance. The law provides for a certain period of time for this, which cannot be less than two months. A person receives a corresponding notice in his hands, the second copy of which remains in his personal file at the enterprise. In addition, the head of the organization must remember that highly qualified employees have an advantage over other subordinates, and all those who are laid off must be offered free vacancies that exist in the campaign. These rules are enshrined in Art. 179, 180 of the Labor Code of the Russian Federation.

When a subordinate refuses the proposed vacancy and wants to leave the reduced position ahead of time, the manager is obliged to pay him all the money due on the last day of his official activity.

Additional warranties

In the event that all subordinates at the enterprise have the same productivity and level of education, then preference is given to staying at the workplace during staff reductions: family citizens with two or more dependents, war invalids, persons injured in the performance of official duties in this organization - this is written in Art. 179. Art. 261 of the Labor Code of the Russian Federation supplements the category of people who cannot be fired in connection with the implementation of these events. Thus, the reduction should not affect the following citizens:

representatives of the fair sex who have babies under the age of three;
single mothers raising disabled children under 18 years of age or minors (if not 14 years old);
a person who is considered the sole breadwinner if he has more than three children in his family, one of whom is under three years old, and the wife is not employed and has no source of livelihood;
a person who himself supports a disabled child (until the latter comes of age).

Practice

The citizen was warned about the upcoming reduction two months before the implementation of these measures. At the same time, the head of the organization did not offer him the available vacancies. After the period of time specified in the notice expired, the employee was terminated from the organization with payment of benefits.

The citizen considered that the contract with him was unfairly terminated, because he has a very good education, work experience and copes with his duties much faster than other subordinates who remained at their jobs. The man went to court.

When all the circumstances were clarified at the meeting, it was established that the dismissed employee not only had a good education and productivity, but he had never been held accountable for violating discipline at the enterprise. While other subordinates who remain in the organization are constantly late and do not complete the work plan. In this regard, the court concluded that the person was dismissed unlawfully. Therefore, the man was reinstated in his position.

Judicial practice under Art. 179 of the Labor Code of the Russian Federation most often shows that the heads of enterprises, when dismissing employees for redundancy, do not evaluate their professional skills, knowledge and abilities, and this is a significant violation of the law. Therefore, the majority of citizens with high qualifications are again restored to work.

Who can't be cut?

Reduction entails an inevitable series of layoffs. But not all workers can be laid off. Who can't be cut?

About reduction

If the number of employees replacing the same positions decreases, we are talking about a reduction in the number of employees. If positions or entire divisions are excluded from the staffing table - about staff reduction. In any case, the employer must comply with a number of mandatory measures provided for by the Labor Code.

Who can't be fired due to redundancy?

Persons who cannot be dismissed on this basis are listed in Art. 261 of the Labor Code of the Russian Federation. These include:

single parents raising a child who is disabled and under the age of eighteen;
single parents raising a child under the age of fourteen;
women with children under three years of age;
a parent (or other legal representative) is the sole breadwinner of a disabled person under eighteen years of age, provided that the other parent is not employed;
parent (legal representative) - the only breadwinner of a child under three years of age in a family raising young children (three or more), if the other parent does not work;
pregnant women.

Cannot be fired if the employee was not notified of the reduction

All workers subject to layoffs must be notified in advance. Employees must be warned against signature and personally at least two months before dismissal (part 2 of article 180 of the Labor Code of the Russian Federation).

For seasonal workers, the notice period is much shorter. It is seven calendar days. And employees with whom an employment contract has been concluded for a period of less than two months must be notified at least three calendar days in advance.

Such notification is made in free form. The employee will need to sign this document. If he refuses to sign, then the text of the document should be read aloud to him in front of witnesses. Further, the fact of notification and refusal to sign must be recorded in the act.

If an employee is fired without notice, such an action will be declared illegal during an audit or in court.

Cannot be fired if the employee agreed to the transfer

Before dismissal for reduction, employees must be offered free vacancies available to the employer.

The employer is obliged to offer the dismissed employee to transfer to another vacant position:

corresponding to his qualifications;
or, if there is no vacancy for his qualifications, a vacant lower position;
or, if not otherwise, a lower paid one.

All vacancies must be offered taking into account the fact that the employee will be able to perform the functions due to his state of health.

The management of the company is obliged to offer its employees all the vacancies that meet the requirements that it has. If there are no vacancies in the locality of the employer, then other options for working in another locality should be offered, unless this is provided for in local acts or an employment contract.

If there are no vacancies, then the laid-off employees must also be notified of this.

If not all vacancies are offered to an employee, it is impossible to dismiss him due to staff reduction.

If the employee agrees to the vacancy offered to him, a transfer should be made.

In the event of his refusal or the absence of free vacancies from the employer, suitable for the reduced one, a dismissal is issued.

Preemptive right

Who is not subject to reduction if the number of employees of the same positions is reduced? The one who has the pre-emptive right. Persons with higher labor productivity and qualifications have this right (Article 179 of the Labor Code of the Russian Federation).

With equal qualifications and labor productivity, preference in leaving work is given to:

persons in whose families there are no other employees with independent income;
family - if they have two or more dependents;
employees who have received an occupational disease or work injury while working in this company;
invalids of military operations for the defense of the Fatherland and invalids of the Great Patriotic War;
employees who were sent by the employer to improve their skills on the job.

The employer has the right to provide by the collective agreement for other categories of employees with the preferential right to keep their jobs with the same professional qualities.

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 employees 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 dependent young 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 himself decides 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 N 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.

During the consideration of the dispute, the court established, and this was confirmed by the case materials, that the plaintiff's family does not have 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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