2 months warning. Job Reduction Notice

Commentary by K. Ya. Ananyeva

When carrying out measures to reduce the number or staff of employees, the employer is obliged:

- offer the employee, in accordance with his qualifications, another available job (vacant position) in the same organization;

- warn the employee personally (on receipt) at least 2 months before the upcoming dismissal due to the circumstances provided for in this article.

FROM written consent employee, the employer has the right to terminate labor contract without prior notice 2 months before dismissal with mandatory lump sum payment additional compensation to the employee in the amount of two months average earnings.

Commentary by K. N. Gusov

§ 1. A prerequisite for the legitimacy of terminating an employment contract in connection with a reduction in the number or staff of the organization's employees is the fulfillment by the employer of the obligation to take measures aimed at employing the employee. These measures consist in the selection by the employer for this employee of another job in the same organization. The Code obliges the employer to offer the employee another available job (vacant position) in the same organization, corresponding to the qualifications of the employee. It is obvious that the proposed work must correspond not only to the qualifications of the employee, but also to his profession, specialty. In addition, the obligation of the employer to employ the employee to be laid off should be considered fulfilled if, in the absence of work in the specialty, qualifications of the employee, he was offered another job in this organization, which he refused to perform.

§ 2. Another indispensable condition for the legality of termination of an employment contract in connection with the liquidation or reduction in the number or staff of employees is the mandatory notification of the employee by the employer personally against a receipt at least two months before dismissal. A warning to an employee may take place for a longer period, which is not a violation of the law.

Personal warning means that each employee individually must be personally warned about the upcoming dismissal. Therefore, this condition is not considered fulfilled if the employees received such a warning, for example, at general meeting labor collective or at a meeting of employees of a separate structural unit organizations. A personal warning must be confirmed by the employee's personal signature.

The Code establishes a new rule by virtue of which an employment contract can be terminated with the written consent of the employee and without notifying him of dismissal two months in advance with simultaneous payment additional compensation in the amount of two months' earnings (on the payment of severance pay upon dismissal, see the commentary to Article 178 of the Labor Code). In this case, upon dismissal, the employee must be paid an amount equal to the three-month average earnings, then the average monthly earnings for the period of employment for the second, and, by decision of the employment service body, for the third month are retained. Dismissal of an employee upon his written application before the expiration of the notice period without payment of additional compensation under paragraphs. 1, 2 art. 81 is not provided for by the Code, since dismissal in these cases is carried out at the initiative of the employer, and not the employee.

§ 3. When carrying out measures to reduce the number or staff of the organization's employees, which may lead to mass layoffs, the employer, taking into account the opinion of the elected trade union body, takes necessary measures, for example, introduces part-time work (see commentary to Article 73 of the Labor Code); no later than three months before the start of the relevant events, informs the trade union body about this in writing (see the commentary to Article 82 of the Labor Code), takes other necessary measures provided for by the Code, federal laws, collective agreement, by agreement.

Commentary by S. A. Panin

1. The Labor Code of the Russian Federation obliges the employer to take measures for the employment of an employee whose place of work (position) is subject to reduction, and above all to offer work in the same organization. The employee must be offered a job according to his profession, specialty, qualifications, and in the absence of such work - another job to which he can be transferred with his consent in the same organization.

At the same time, it must be borne in mind that the employee is not entitled to demand from the employer a vacant higher position or work, the performance of which requires retraining of the employee with the receipt of another profession, specialty.

2. The employee must be warned personally about the upcoming dismissal at least two months in advance. An employee may be warned about dismissal even more than two months in advance, i.e. dismissal carried out, for example, three months after the date of the warning, is not considered a violation of the requirements established by this Code.

During the warning period, the employee must perform the duties stipulated by the employment contract, he is subject to the internal labor regulations of the organization. In case of violation of these rules, the employee may be subjected to disciplinary action and fired for another reason, such as absenteeism.

3. Dismissal under paragraphs. 1 and 2 Art. 81 of the Code before the expiration of the warning period is possible in two cases.

The employer has the right, with the written consent of the employee, to dismiss him without notice of dismissal with the payment of appropriate compensation.

The employee has the right to ask the employer in writing to terminate the employment contract under paragraphs. 1 and 2 Art. 81 of the Code before the expiration of the warning period. It should be borne in mind that in this case, the Code does not provide for the payment of additional compensation, and the dismissal itself is a right, not an obligation of the employer.

4. On the measures that the employer must take in the event of a threat of mass layoffs, see the comments to Art. 73 and 82 of the Code.

Among other ways to terminate an employment contract, redundancy is highlighted. The fact is that among other types of dismissal provided for by the Labor Code (Labor Code of the Russian Federation), this is the most time-consuming, but at the same time, perhaps, the most guaranteeing the observance of the rights of the employee.

Tom, what employees and employers need to know when laying off staff, I dedicated this article.

The dismissal of an employee due to staff reduction in the Labor Code of the Russian Federation is included in Article 81, which considers all cases when an employment contract is terminated by an employer.

○ Downsizing.

✔ Labor Code on dismissal due to staff reduction.

Article 81 of the Labor Code of the Russian Federation combines both cases of dismissal for absenteeism, violation of discipline or labor protection measures, and cases when an employee quits, although he is not guilty of anything (these include, in addition to reduction, the liquidation of an organization, for managers, their deputies and chief accountants - change of the owner of the organization).

The Labor Code of the Russian Federation does not decipher the difference between downsizing and downsizing. In practice, the difference is also insignificant and consists only in the fact that with a reduction in the number of positions in staffing is preserved, but there will be fewer employees on it (for example, instead of three managers in the department, one remains).

When reducing staff specific position is generally excluded from the schedule (for example, the position of a personnel officer is abolished at an enterprise, and his duties are transferred to an accountant).

✔ Who can and cannot be made redundant?

Despite the fact that the reduction in the number or staff of employees depends entirely on the initiative of the enterprise's management, the law provides for certain benefits for a number of categories of employees.

I will tell you more about them below. In the meantime, I will say that when reducing, there is a rule about preferential retention at work. Art. 179 of the Labor Code of the Russian Federation provides that, in the event of a reduction, it is necessary, first of all, to dismiss workers with lower qualifications and with lower labor productivity.

In practice, this usually means that lay off first of all workers with less work experience because seniority usually implies experience.

When reducing, the results of qualification exams, the education of the employee (in the same position, an employee with higher education will have an advantage over a colleague with a secondary specialty), as well as the indicators achieved by each of the employees in the previous period.

The Labor Code of the Russian Federation and other acts also require that the following employees enjoy the advantage when leaving at work:

Having disabled children.
Single mothers and fathers.
The only breadwinners.
Suffering from an injury or occupational disease obtained in this enterprise.
War invalids.
Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
Victims of the Chernobyl disaster and the Semipalatinsk tests.
Increasing qualifications in the direction of the organization, combining training with work.
Employees-inventors (oddly enough, the USSR Law “On Inventions in the USSR” is still in force in this part).

In addition, some employees cannot be fired at all by the employer except for own will, agreement or for committing a misdemeanor.

With regard to the reduction, in addition to the usual beneficiaries, members of the leadership of trade unions not lower than the shop floor cannot be dismissed.

It is prohibited to dismiss elected representatives of the team of employees who participate in resolving disputes with the employer.

✔ The main reasons for the reduction.

The law does not directly establish in which cases the employer has the right to reduce the number or staff of employees.

The Constitutional Court of the Russian Federation, in its ruling No. 867-O-O of December 18, 2007, established that this is the right of the employer in cases where economic necessity requires it.

However, in turn, the Supreme Court of the Russian Federation, by ruling No. 19-В07-34 dated 03.12.2007, introduced a rule that in the event of a dispute, the court has the right to check the necessity and validity of the reduction.

Thus, an employer wishing to take such measures must order about the reduction, indicate for what reasons the dismissal is made.

As a rule, the reasons forcing employees to lay off are:

Low profit of the enterprise and the inability to pay salaries to the former staff.
The low efficiency of the former staff and the presence of positions that are not needed.
A change in technology or organization of production, in which part of the workers is unclaimed.

✔ The necessary conditions.

Dismissals of employees for reduction are possible subject to the employer's compliance with a number of conditions

Full and strict compliance with the reduction procedure provided for by law.
If the enterprise previously concluded collective agreements with employees, or the employment contracts of the dismissed contain additional guarantees upon dismissal, they must also be observed.
Justification for dismissal.
As already mentioned, in the event of a dispute, the court has the right to check whether the dismissal was justified economically and organizationally.
Employment notice.
Separately, this item should be highlighted, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

✔ The order, procedure and rules of dismissal for reduction.

Reduction of staff for any enterprise is a rather complicated procedure, and violation at any of its stages is fraught with a fine or legal proceedings for the employer.

Dismissal must be done in the following order:

The management of the enterprise issues an order on the planned reduction at least two months before the employee is to be fired (Article 180 of the Labor Code of the Russian Federation). The fact that the reduction is expected, each of the employees subject to dismissal is warned personally and, against signature, gets acquainted with the text of the order. However, the redundancy order should not be confused with the order to dismiss a specific employee - such orders are issued much later, when the term of dismissal approaches.
Employees who are subject to reduction, the management of the enterprise is obliged to offer any other position that meets the qualifications of the dismissed employee. It should be remembered that the offer of another job is not a one-time action: the employer is obliged to notify the dismissed of the vacancies opening at the enterprise until the very termination labor contract. The employee is obliged to either accept the offer and continue working in another position, or refuse - and the refusal must also be recorded in writing, with the date and signature of the employee.
The employer notifies the trade union organization, if such exists at the enterprise. The notice period is the same as for employees, but if a mass layoff is planned, the union should be warned not two, but three months in advance. This rule was established by the decision of the Constitutional Court of the Russian Federation. In turn, the trade union must express its opinion on the dismissal within seven days. If the trade union does not agree to the reduction of workers, then, according to the law, within three days positions need to be aligned. If, in this case, no agreement was reached, the employer has the right to dismiss the workers, but the trade union can appeal this decision to the Federal Labor Inspectorate (Rostrudinspektsiya). The inspection, in turn, may recognize the dismissal as illegal and demand the reinstatement of the dismissed person at his former place of work with payment compensation and for forced absenteeism. The decision of the Federal Labor Inspectorate can be appealed by the employer to the court.
In addition to the trade union, the employer warns the employment service within the same time frame (two, with mass layoffs - three months).
If within two months the employee has not agreed to any of the vacancies offered to him, the employer issues a dismissal order to reduce staff. The order is usually issued by unified form T-8. In this case, the employee is given employment history, a salary is paid for the days worked of the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is that the employee, in accordance with Art. 178 of the Labor Code of the Russian Federation is paid severance pay. Its size is not less than the average monthly salary, but under an employment contract or a collective agreement with employees, the allowance can be increased.
If the employee, after being fired, was registered with the labor exchange, but was not employed, the former enterprise continues to pay him the average monthly salary for two months (but with the deduction of the already received severance pay).
If the employee agrees, he can quit on a reduction and before the expiration of the two-month period. In this case, the employer pays him, in addition to the severance pay, also a salary for unworked time between the day he actually quit and when he was supposed to quit according to the employer's plan. In addition, the employment contract or collective agreement may provide for other payments in case of staff reduction.

Order on the planned dismissal for reduction - at least two months in advance;
Warning of the employment service and the trade union organization (if there is one at the enterprise) - at least two months in advance, in case of mass layoffs - at least three months.
The deadline for paying wages for the worked part of the month, compensation for unused vacation and severance pay - no later than the day of dismissal.
Payment terms average salary for an employee registered with the employment service, but not employed - up to two months.

Violation of these terms can lead to a fine for individual entrepreneurs - up to 50 minimum wages, for legal entities- up to 500 minimum wages.

In this article, I would like to focus on a number of legal aspects, allowing most effectively, "with little bloodshed" to make a reduction in staff, while maintaining key personnel and without violating the norms of federal law, as well as to prevent the consequences in the form of reinstatement of an employee at work, payment for forced downtime, compensation for moral damage and penalties in the future.

At present, the state of affairs in financial sector unstable, and, as a result, the economic problems that have arisen in the country and business entail the need to tighten their belts, including by optimizing human resources.

Companies seeking to stabilize financial position, are concerned about labor efficiency, the skill level of staff, and the amount of work each worker does (workload).

The current Labor Code of the Russian Federation provides for such a basis for termination labor relations at the initiative of the employer, as a reduction in staff or the number of employees. Terminating relationships for given grounds, the employer exercises the right to choose the optimal organizational structure: what kind of position he needs, and what need has disappeared. To avoid reinstatement and claims compensation payments, the employer must comply with the algorithm established by law.

Firstly, the law provides for a certain period for notifying both the employee and the competent authorities (employment services, trade union, if one has been created at the enterprise) about the upcoming job reduction. Not later than two months before the start of the relevant activities, it is necessary to inform the employment service in writing about this and indicate the position, profession, specialty and qualification requirements to each of the laid-off workers, as well as the conditions of remuneration for their work.

If the decision to reduce the number or staff of the organization's employees may lead to a mass dismissal of employees, the employer shall notify about this no later than three months before the start of the relevant events. The criteria for mass layoffs are established by the Regulations on the organization of work to promote employment in conditions of mass layoffs. The main one is the indicator of the number of dismissed employees due to a reduction in the number or staff of employees for a certain calendar period.

In addition, if the company has established a primary trade union organization, then the employer is obliged to inform the elective body of this organization about upcoming events in writing no later than two months before the start of their holding, and if the decision to reduce the number or staff of employees may lead to mass layoffs of employees, no later than than three months prior to the commencement of the relevant activities.

The employer is obliged to notify the employee himself of the upcoming dismissal due to a reduction in the number or staff of the organization's employees at least two months in advance, and the notice must be signed by the employee. In such a notice, it is legally correct not to set a specific date for termination of the employment contract, but to indicate that it will take place no less than 2 months from the date of delivery of this notice. This is due to the fact that the current labor legislation does not allow the termination of an employment contract with an employee during the period of his temporary disability, vacation, military training.

If the notice specifies the specific date of termination of the contract, and the employee takes a certificate of temporary disability on this date, then the notice will lose its legal force, that is, the employment contract will be considered extended with all the ensuing legal consequences for the parties, and the employee can be reinstated by court decision.

With the written consent of the employee, the employer has the right to terminate the employment contract with him before the expiration of the two-month period specified in the notice, paying the employee additional compensation in the amount of average earnings for the time remaining before the expiration this period. The employee is paid a severance pay in the amount of the average monthly earnings, while he retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including the severance pay).

Thus, analyzing the norms of the current legislation in the context of the notification period, we can draw the following conclusion. The management of the company should start planning measures to reduce the staff or number of employees at least 2 months before the expected date of their implementation, and if the enterprise has a primary trade union organization, then 4–6 months in advance. 2–3 months before the date of the proposed reduction, it is necessary to notify the trade union and the employment authority, and then, at least 2 months in advance, directly to the employee (staff unit).

Compliance with the deadlines established by law for notifying employees and relevant authorities is a guarantee of the legitimacy of the reduction. In particular, in judicial practice there are precedents of cases of violation by the employer of the deadlines for notifying employees about the upcoming reduction in staff, established by federal law.

Failure to comply with such deadlines (failure to notify the employee, notification less than two months before the expected date of reduction in staff or number of employees, etc.) is the basis for the reinstatement of the employee in his previous position, with payment for temporary downtime due to the fault of the employer. In addition, the employer has the opportunity to "pay off" for the moral damage caused to the employee in connection with the illegal deprivation of his opportunity to work, and to reimburse the costs of paying for the representative's services.

Moreover, employers need to keep in mind that the courts have been given clarifications: when considering cases of reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis and compliance with the established procedure for dismissal rests with the employer.

The notice periods discussed above apply to those categories of employees with whom an employment contract is concluded for an indefinite period. If, however, employees who have concluded an employment contract for a period of up to two months, or seasonal workers, fall under the reduction in staff or number of employees, then the former must be notified of the upcoming reduction at least 3 calendar days in advance (part 2 of article 292 of the Labor Code of the Russian Federation), and seasonal workers - at least 7 calendar days, in accordance with the requirements h. 2 Article. 296 of the Labor Code of the Russian Federation.

The employer must also take into account that the current labor legislation establishes several categories of employees who cannot be fired due to staff reduction: pregnant women, women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child - up to 18 years), and other persons raising children from these groups without a mother (Article 261 of the Labor Code of the Russian Federation). Dismissal in connection with the reduction of the staff of an employee under the age of 18, in addition to compliance general order, is allowed only with the consent of the relevant state inspection labor and commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation). In addition, the employer must take into account the requirements of the law, by virtue of which, upon dismissal due to a reduction in the number or staff, the employer is obliged to offer the employee another available job ( vacant position) in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation.

Part 3 Art. 81 of the Labor Code of the Russian Federation determines that dismissal to reduce the number or staff of the organization's employees is allowed if it is impossible to transfer the employee with his written consent to another available job (both to a vacant position or job corresponding to the employee's qualifications, and to a vacant lower position or lower paid job) that a person can perform, taking into account the state of his health. When deciding whether to transfer an employee to another job, the manager must also take into account the real ability of a person to perform the work offered to him, taking into account his education, qualifications, and experience. In this case, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area or in other regions, if this is provided for by the collective agreement, agreements, labor contract. If the employer does not have a suitable position, he is also obliged to notify the employee about this. Failure by the employer to provide another job suitable for the employee is a violation of the dismissal procedure and entails the reinstatement of the latter at work in the previous position.

Termination of an employment contract with a reduction in the number or staff of employees is possible only on the condition that the employee does not have a pre-emptive right to maintain the workplace, established by Art. 179 of the Labor Code of the Russian Federation. By general rule in a privileged position are workers with higher labor productivity and qualifications. Such employees are considered the most valuable, and they can only be fired as a last resort, however, the employer retains the right to provide for other categories of privileged employees in a collective agreement.

The employer needs to take measures to reduce the state or number of personnel in such a way that there is no discrimination of employees and the court, in the event of an employee’s appeal, does not have the opinion that these measures are aimed directly at reducing a particular person. An example of discrimination is the following situation: the employer notified the accountants of the upcoming reduction of this position and offered to transfer to the position of an accountant-calculator to everyone, with the exception of one employee, to whom such an offer was not made. After a two month period this worker was dismissed under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation - reduced. He filed a corresponding statement of claim with the court, by the decision of which he was reinstated in his previous position with the same head, with payment for the forced downtime.

The current legislation imposes on the employer the obligation to pay the employee certain compensations provided for in Art. 178 of the Labor Code of the Russian Federation, namely: the dismissed employee is paid a severance pay in the amount of the average monthly earnings, he also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (with offsetting the severance pay). In exceptional cases, the average monthly salary is retained by the employee for the third month from the date of dismissal - by decision of the employment service authority, provided that within two weeks after the dismissal the employee applied to this authority and was not employed by him. And it is not possible for the employer to evade this obligation.

Despite the certain complexity of the procedure and the need for payments established by the Labor Code, many employers go for a reduction in staff or the number of employees, citing the fact that a one-time disposal of unnecessary staff positions and the production of appropriate payments to them is economically justified: in the future, the employer will have a real opportunity to organize a business in in accordance with their economic capabilities and needs for labor resources.

1. P. 1. Art. 81 Labor Code Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).
2. This duty Part 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On employment in Russian Federation».
3. For example, a mass layoff can be considered the dismissal of 50 or more people within 30 calendar days; 200 or more people within 60 calendar days; 500 or more people within 90 calendar days.
4. The requirement is established by Art. 82 of the Labor Code of the Russian Federation.
5. Decree 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”.
6. Part 1 Art. 180 of the Labor Code of the Russian Federation
7. p. 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”

A notice of impending dismissal is sent within a clearly defined time frame. How many days in advance must the employer notify the employee of the departure, and he - the manager? And is it obligatory for a subordinate to notify his boss 2 weeks in advance?

The time period within which the employer must notify the employee of the dismissal

Article 180 of the Labor Code of the Russian Federation.

If the termination of the contract occurs at the initiative of the boss, then the employer must necessarily warn the subordinate about this. There are clear deadlines for notifying an employee upon dismissal due to the reduction or liquidation of the enterprise. In both of these cases, the warning period is 2 months under Article 180 of the Labor Code of the Russian Federation.

In other circumstances (leaving due to inconsistency with the position held, absenteeism, and so on), the notification time is not clearly indicated in the legislation. But it is advisable to carry out a warning after receiving the results. attestation commission, or an explanatory note from an employee. But under certain circumstances, the law allows you to notify a subordinate a few days in advance.

In some cases, you can notify the employee in less than 2 months:

If a person is in seasonal work, then the warning period for the upcoming dismissal is 7 calendar days.
When terminating a contract with a subordinate on a trial period, a warning must be sent 3 calendar days in advance.
If a person is concluded fixed-term contract for a period of up to 2 months, then the boss must notify the employee of the dismissal 3 days in advance.

If the director violated the time of informing, then the subordinate can file a lawsuit against him in court or a complaint to the labor inspectorate.

How should a notice be given to an employee?

To warn about the dismissal, the boss needs to send a written notice personally to the employee for signature. However, if for some reason a person is not at the place, then the employer needs to inform him in another way.

What to do and how to inform the dismissed person about the upcoming release from official duties if he is absent or refuses to sign the notice:

send by registered mail to the address of registration (if the person was not at the enterprise).
Draw up an act on the employee's refusal to sign (in the presence of witnesses).

In addition to this, in both cases, a written notice should be registered in a special journal.

Important! If there is a reduction in staff, then the subordinate, after informing, should be provided with other suitable vacancies in the enterprise.

How long does it take for an employee to notify their manager of their departure?

Article 80 of the Labor Code of the Russian Federation.

The subordinate must notify the head of the dismissal of his own free will 14 calendar days in advance according to Article 80 of the Labor Code of the Russian Federation. If the contract is terminated by agreement of the parties, then there may not be a 2-week notice from the employer if the director and employee have agreed on this.

If the subordinate and the manager agreed that the first one would leave the enterprise in less than 2 weeks, but at the same time the departure was not documented by mutual agreement, then this also does not contradict the Labor Code.

In what cases is it necessary to warn the boss 3 days in advance?

Article 71 of the Labor Code of the Russian Federation.

An employee can also leave work during the probationary period under Article 71 of the Labor Code of the Russian Federation. The notice of dismissal must be sent to the manager at least 3 days before the desired date.

At the same time, the employment contract must indicate that the subordinate is being tested.

Important! If the contract is issued only after the probationary period has passed, then there must be an additional agreement. If the test period is not indicated anywhere, and there is no information that a person passes it, then he is considered to be hired.

In addition, a subordinate may be dismissed with a notice to the director 3 days in advance in the following cases.

Moreover, both of these points must be spelled out in the contract.

Under what other circumstances is it not required by law to notify the employer 2 weeks in advance?

In some cases, a person may quit even the next day after notifying the boss.

What circumstance allows you to warn the employer of dismissal in less than 14 days:

retirement;
enrollment in any university (required for the full-time department);
transfer of the spouse (or wife) of a subordinate to another city (for work or service);
the need to care for a family member;
moving an employee to another city for permanent residence;
pregnancy;
a sharp deterioration in health.

To confirm one of these circumstances, the employee must provide the relevant documents (conclusion from the clinic, train tickets, and so on).

If a subordinate wants to leave the enterprise without a two-week working off on the basis of pregnancy, then the law obliges her to bring a certificate from gynecology, an enlarged belly is not a confirmation. If this document is not available, then the woman does not have the right to leave without warning in 14 days.

2 month notice to cut - an obligatory stage of the legal procedure for reducing employees at the enterprise. The material presented below explains in detail all the nuances regarding the notification of an employee about the upcoming dismissal in this case.

How much notice must be given of a reduction in a staff unit or number of employees?

Know, how much notice of reduction, any employer is obliged, since violation of the statutory period may disrupt the reduction measures. The general term for the notice of reduction is enshrined in Part 2 of Art. 180 of the Labor Code of the Russian Federation, according to which it cannot be less than 2 months.

However, for some categories of employees, shorter deadlines are set:

Set shorter deadlines reduction warning, the employer is not entitled, even if the employee himself does not object to this. For example, if layoff notice dated 12/20/2016, it is impossible to dismiss him before 02/21/2017, since in this case less than 2 months will pass from the moment of notification. It is possible to terminate an employment contract with an employee before the expiration of 2 months from the moment of dismissal only if he agrees to early dismissal, but this is possible only with the payment of additional compensation (part 3 of article 180 of the Labor Code of the Russian Federation).

An increase in the warning period for the upcoming dismissal for reduction is allowed.

From what moment does the countdown of 2 months begin when they warn of dismissal (explanation with an example)?

The period under consideration is associated with the termination of labor relations, therefore, for its calculation, the provisions of Part 2 of Art. 14 of the Labor Code of the Russian Federation. Thus, the two-month period allotted for notifying the employee of upcoming organizational events begins to run from the day following the day the employee was notified. This is also confirmed by judicial practice (cassation ruling of the Kirov Regional Court dated November 8, 2011 in case No. 33-3652). So, if the employee was notified of the reduction on 12/20/2016, the two-month period is calculated from 12/21/2016 and dismissal is possible no earlier than 02/21/2016.

The dates of publication of the notice and handing it over to the employee for review may not coincide with the actual date of the employee's signature (for example, if he was absent from the workplace on the day this document was issued). For calculus due date only the date of actual familiarization of the employee with the document is taken into account. Thus, if the notification was issued on 12/20/2016 and signed by the employee on 12/21/2016, layoff warning will be valid from 12/22/2016. Accordingly, the dismissal will probably not be earlier than 02/22/2017.

Don't know your rights?

What to do in a situation where the employee does not want to sign the notice? The law does not regulate this situation. In practice, the notification in this case is most often read aloud to the employee in the presence of at least 2 witnesses, after which an act of refusal to sign is drawn up layoff notices - sample You can see such an act on our website.

Is there an expiration of the redundancy notice?

The period of notice of dismissal is not interrupted, as this is not provided labor law. That is, even if the laid-off employees go on vacation or sick leave, this does not affect the course of the period under consideration.

The employer is also not limited in declaring downtime during the period of the notice period for the reduction (part 3 of article 72.2 of the Labor Code of the Russian Federation). The purpose of early warning an employee of a layoff is to give them time to look for new job. The introduction of downtime does not interfere with the achievement of this goal and does not violate the rights of the reduced. The relevant situations were the subject of court proceedings, during which the demands of employees to extend work for the downtime were recognized as unlawful (for example, the appeal ruling of the Perm Regional Court dated April 10, 2013 in case No. 33-3367).

Last day of work - how long does it take to get fired?

The deadline for notice of reduction is set in months - which means that it will end on the corresponding day (date) of the last month of work (part 3 of article 14 of the Labor Code of the Russian Federation). In the example above, this number, and, accordingly, the last day of work will be 02/21/2017. If the last day of the term falls on a holiday or weekend, then, guided by Part 4 of Art. 14 of the Labor Code of the Russian Federation, the last day of work should be recognized as the next business day following the date of the actual expiration of the 2-month period (see the appeal ruling of the Moscow City Court of December 20, 2013 in case No. 11-40290 / 2013).

IMPORTANT! On the day of the expiration of the notice period for the reduction, the employee may be absent from work due to sick leave or vacation. The law expressly prohibits the dismissal of an employee in such a situation (part 6 of article 81 of the Labor Code of the Russian Federation). Thus, in this case, the last day of the term will be the day the worker goes to work (see the appeal ruling of the Moscow City Court dated December 22, 2015 in case No. 33-48647 / 2015).

What should the employer do if the employee did not go to work on the last day indicated in the notice of the upcoming reduction, without being on vacation or on sick leave?

The practice of the courts shows that if in this situation the employee is dismissed later than the date specified in the notice, then there is a risk that the court will recognize his dismissal as illegal (see the ruling of the Sverdlovsk Regional Court dated November 12, 2014 in case No. 33-13739 / 2014). This means that in this case, the employee should be dismissed on the day specified in the notice. There is no need to wait until the employee appears (see the appeal ruling of the Moscow City Court dated May 26, 2016 in case No. 33-20462/2016).

Notification of the reduction of the employee when he is not at the workplace

At the time the employer issues a notice of dismissal, some of the employees may be on sick leave, and some may be on vacation. The simplest situation is when the employee is on annual leave. In this case, it is advisable to recall the employee from vacation, familiarizing him with the notice of reduction.

In cases where the employee does not agree or is not able to come to work during the annual leave (for example, due to being in the territory of another state), as well as in other cases of his long absence, the employee can be notified of the reduction in only one way - by sending a letter with a description of the attachment and a notification of receipt.

Notice of dismissal for reduction of staff or number of employees (sample)

Jae if someone else's sample letter of redundancy It is important to take into account as many nuances as possible. There are no specific requirements for the content of the notice, however, taking into account the requirements of the Labor Code of the Russian Federation and judicial practice the following points can be highlighted:

It should be clear from the document who it comes from and to whom it is addressed (part 2 of article 180 of the Labor Code of the Russian Federation contains a requirement for a personal notification of the employee, that is, collective notifications are not allowed).
The reason for the reduction should be indicated in the form of a link to a specific document (order, protocol), on the basis of which the relevant organizational events are carried out.
If at the time of delivery of the notification there are vacancies that can be offered to the employee being reduced, they must be indicated. At the same time, the employee is usually explained that, with his written consent, he can be transferred to the appropriate positions, and in case of refusal to transfer, he can be dismissed. If there are no vacancies suitable for the employee, this must also be indicated.
If the employer is interested in dismissing the employee before the expiration of the redundancy notice, the provisions of Part 3 of Art. 180 of the Labor Code of the Russian Federation on the possibility of early dismissal with the payment of additional compensation.
The notification is signed only by authorized persons, which may be employees who have the right to act on behalf of the employer without a power of attorney (if such is enshrined in the charter of the organization) or a person by proxy. The signing of the notice by an unauthorized person will make the dismissal illegal (see ruling of the Supreme Court of the Russian Federation dated 03.10.2008 No. 89-B08-6).
The notice provides places for the signature of the reduced and putting down the date of familiarization with the document, as well as for expressing refusal or consent to the transfer, if other positions were offered.

Do I need to indicate the exact date of dismissal in the notice of reduction of the employee?

The legislation does not contain the requirement to indicate the date of the upcoming dismissal in the notification of upcoming organizational events. Only established How far in advance do you have to give notice of layoffs?(the period during which, after the notice has been served, the employee cannot be dismissed). The courts note that the requirement to indicate the date of dismissal would lead to a violation of the rights of the employer, who in good faith complied with the requirement of the law on early warning of the employee about the reduction, and would provide unscrupulous employees with the opportunity to abuse their rights (see the appeal rulings of the Moscow City Court dated 10/18/2012 in case No. 11-22044 and 10/28/2013 in case No. 11-35719).

If desired, the employer can designate the last day of the employee's work, however, the risk of difficulties must be taken into account. So, it was already noted above that in case of dismissal of an employee later than the specified date, the court may reinstate the employee at work, recognizing the dismissal as illegal.

As you can see, the warning about the upcoming reduction is not such a simple procedure as it might seem at first glance. Many dismissals are recognized by the courts as illegal precisely because of its non-compliance. To avoid unpleasant consequences, the employer should be extremely careful at this stage and take into account all possible risks.