Can I be laid off from my job? Is it possible to lay off an employee who has a minor employee?

Cuts at work: it’s easier for parents to fight for their rights familyr_pravo wrote in May 21st, 2012

text: Ksenia Pechenik, member of the board of the association "Lawyers for Labor Rights"
illustration: S.J. Newberry

It would seem that, horror stories about the crisis layoffs of people from their jobs to the streets in one day sank into oblivion. Meanwhile, a wave of layoffs continues in the labor market. Taught by the crisis personnel services Now they are trying to do everything within the law, fearing new litigation and fines from the labor inspectorate and prosecutor's office. Now the dismissal process is approached more carefully and at the same time, more sophisticated. Any methods are used, from threats to falsifying non-existent disciplinary offenses in order to quickly dismiss an employee whose payment is no longer included in the company’s plans. Meanwhile, there are several main points in the reduction procedure that will allow you to fight for your rights. And the fact that you have children will only help in this matter.

Staff reduction procedure

The procedure for carrying out measures to reduce the number or staff of employees according to the law provides for the following stages:

1. Submitting an order to reduce the number or staff of the organization’s employees, individual entrepreneur to the attention of all employees ().

This means that you must be announced the decision taken. Notify that the company plans to reduce your department or your position.

2. Determination of employees who have preemptive right to remain at work ().

In practice, this means that before cutting specific persons, the employer must make sure that you can be made redundant.

3. Warning employees personally against a receipt upcoming dismissal at least 2 months before dismissal ().

You must be given a notice of layoff no EARLIER than 2 months in advance. The notice must be issued in two copies. On one of which you must sign to familiarize yourself with it and receive your copy.

4. Offering employees subject to layoffs another job in the same organization, if available (articles, Labor Code).

This means that the employer must take all measures to provide you with other work that matches your qualifications, or work that is below your qualifications, but which you are able to perform, taking into account your wishes and state of health.

5. Identification reasoned opinion the elected body of the primary trade union organization on the dismissal of each individual employee - a member of the trade union in accordance with the rules established ().

Final stage mandatory only if your employer has established and operates a primary trade union organization. If you have one, it won’t hurt to become a member of the trade union.

If the employer does not comply with the above requirements, this is grounds for declaring dismissal due to redundancy illegal in judicial procedure, and the court must reinstate you at work with payment of compensation to you for the time of forced absence.

Very important : If you are fired illegally, then by law you only have ONE month from the date of dismissal to file a claim in court to have your dismissal declared unlawful. The claim should be filed in district court strictly in place legal address employer (or branch or representative office, if you worked for them). When going to court, employees are exempt from paying state fees.

Preferential right to remain at work

By general rule When staffing is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications. However, with equal labor productivity and qualifications, preference in remaining at work is given, among other things, to persons with a family and children - if there are two or more dependents.

Who does the law consider a dependent?

The Labor Code contains an absolute ban on dismissal due to staff reduction of the following categories of workers:

Pregnant women;
- women with children under 3 years of age;
- single mothers with a child under 14 years of age or a disabled child under 18 years of age;
- employees who are raising a child under 14 years of age or a disabled child under 18 years of age without a mother.

Since December 2011, by the Resolution of the Constitutional Court of the Russian Federation No. 28-P “In the case of verifying the constitutionality of part four of Article 261 Labor Code of the Russian Federation in connection with the complaint of citizen A.E. Ostaev" fathers with many children were equated with mothers with many children, therefore, such fathers are also not subject to reduction.

So, if you have received notice of an upcoming layoff, there is no need to panic. Perhaps the employer is not fully familiar with your family situation, or did not pay due attention to it. Immediately go for a consultation with a specialist labor disputes with your notice. In practice, only timely contact with a lawyer allows you to resolve the current situation out of court. Situations are different. Perhaps you and your lawyer will be able to resolve the issue quickly and “bloodlessly.”

And remember: the employer, realizing that he cannot legally fire you, is ready to dismiss you by agreement of the parties and pay you decent compensation upon dismissal. In my practice it was possible in difficult cases dismiss ordinary employees with payments of up to one annual salary. Such a “cash airbag” will help avoid unnecessary tedious litigation and will provide an opportunity in a calm environment to find new job without thinking about how to support a family in the near future.

Remember also that even if dismissal due to downsizing is inevitable, you will remain employed for at least another 2 months. former employer(you will work until the expiration of the notice period for the upcoming layoff). Upon dismissal, you are required to additionally pay one average monthly salary and compensation for unused vacation. If you contact the employment service in a timely manner after being laid off for registration, the employer, upon providing a certificate, will pay you up to 2 more average monthly earnings if you are not employed.

This means that if you are faced with the choice of resigning as required by layoff in 2 months or being fired today by agreement of the parties, then payments in the event of dismissal by agreement should not be less than 3 salaries. In practice, employers are ready to consider 4-5 average monthly payments. But if you agree to be dismissed by agreement of the parties, the amounts due for payments must necessarily appear in the dismissal agreement; this is the only guarantee of receiving them in your hands.

The initiative to terminate the contract was not on the part of the employer, but on the contrary - on yours. In this case, any employee is obliged to notify the employer at least two weeks in advance. Specified period can be reduced partially or completely only by agreement of the parties. But if the director does not give his consent, then no one has the right to force her. The employer cannot oblige you to work exactly these two weeks.

Consequently, refusal of a business trip or overtime work won't be in in this case be disciplinary offense. Termination allowed employment contract with a pregnant woman if she worked temporary agreement during the absence of another employee. At the same time, the employer is obliged to offer other available vacancies that are suitable for pregnant women. If a woman has a child under the age of three, or is raising a child under the age of 14, then not all conditions can be used to dismiss such women at the initiative of the employer. provided by law.

They won't drive us away

In reality, of course, this does not always happen. But at least this requirement, enshrined in the Labor Code, can serve as a basis for an employee to defend his rights in court. If, of course, he can prove that he works better and with greater productivity than those who remained on staff. family with at least two dependents (for example, two young children or one child and a disabled spouse); workers - the only breadwinners in the family; employees with disabilities, if the occupational disease or injury that led to disability occurred while this enterprise; combat disabled people; employees sent for on-the-job training. The employee is notified of dismissal two months in advance, against signature.

Labor Code: parents' rights you should know about

They must last at least 30 minutes and be provided at least every three hours. At the request of the employee, breaks for feeding can be added to breaks for rest and nutrition of the employee herself, or in aggregate form transferred to the beginning or end of the working day (shift). Article 263 of the Labor Code of the Russian Federation provides that an employee who has two or more children under the age of fourteen, an employee who has a disabled child under the age of eighteen, a single mother raising a child under the age of fourteen, a father raising a child under the age of fourteen years without a mother, the collective agreement may establish annual additional holidays without saving wages at a time convenient for them, lasting up to 14 calendar days.

A list of valid reasons for dismissal on the day the application is submitted may be enshrined in the internal rules labor regulations organization or in collective agreement. The Labor Code provides for cases when an employment contract can be terminated within three days. The grounds for termination of the employment contract in this case are: Dismissal at the initiative of the employee or employer during the period probationary period(Article 71 of the Labor Code of the Russian Federation)

RAA Law

Dismissal of an employee is permitted due to a reduction in the number or staff, if it is impossible to transfer the employee with his consent to another job (Article 73 and Article 180 of the Labor Code.) When carrying out measures to reduce the number or staff, the employer is obliged to offer the employee, in writing, other available work ( vacant position) in the same organization, corresponding to the employee’s qualifications (and not just performed taking into account the qualifications). In the absence of such work - a vacant lower position or lower paid work that the employee can perform taking into account his qualifications and health status. In the absence of such work (based on staffing table), as well as in the event of an employee’s refusal of the proposed job, an employment contract with specific workers ceases its effect. Upon termination of an employment contract due to a reduction in the number or staff, the dismissed employee is paid severance pay in the amount of average monthly earnings, and also retains the average monthly earnings for the period of employment, but not more than 2 months from the date of dismissal (including severance pay). IN exceptional cases the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal (by decision of the employment service agency - a certificate confirming the fact that the employee is not yet employed).

Who should not be laid off?

46 Procedure for issuing certificates of incapacity for work, approved.

by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n). A certificate of incapacity for work for pregnancy and childbirth is issued by an obstetrician-gynecologist, or in his absence - by a doctor general practice(family doctor), and in the absence of a doctor - a paramedic. The law does not require a woman to notify her employer that she is pregnant. Moreover, in a short period of time a woman may not know about it at all.

Hello. I worked at the school for 20 years. This year I'm getting laid off. I have a minor child. Does the employer have the right to lay me off without providing another position if the school has been working with temporary replacements since this year during maternity leave?

Answer

Hello, Tatyana Viktorovna.

If you are raising a child under the age of 3, or are a single mother raising a disabled child under the age of eighteen or a young child under the age of fourteen, then, according to Article 261 of the Labor Code of the Russian Federation, termination of the employment contract due to a reduction in the number or staff is impossible. Meanwhile, if you do not belong to one of the above categories of citizens, then dismissal due to job reduction is indeed possible. However, the procedure for terminating an employment contract must be followed. the specified basis. In particular, according to Article 179 of the Labor Code of the Russian Federation, the preemptive right to remain at work must be respected. In particular, according to the specified norm Code, when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications. With equal labor productivity and qualifications, preference in remaining at work is given to: family - if there are two or more dependents; workers in whose family there are no other workers with independent earnings; employees who received during their employment of this employer work injury or Occupational Illness…… In addition, on the basis of Article 180 of the Labor Code of the Russian Federation, the employer is obliged to offer you another available job (vacant position). Dismissal due to a reduction in the number or staff of employees is allowed if it is impossible to transfer the employee from his written consent to another job available to the employer, which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all the relevant specified requirements vacancies available to him in the locality.

To protect rights hired workers The current labor legislation contains requirements that directly prohibit their unjustified dismissal. This means that if an indefinite term agreement is concluded between an employer and an employee labor contract, then the employer terminates it without good reasons can not.

Some categories of citizens are protected by law to a greater extent than others. For example, women who have small children. Labor guarantees such women are allowed to provide legal protection to women when it is especially necessary for them. This allows them not to worry about unjustified job loss and has a positive effect on the demographic situation.

Guarantees for women are valid only until the child turns 18 years old. From now on, any woman will be under the influence labor legislation on a common basis for all employees.

In addition, depending on the age of the child, there are various restrictions for the employer to fire women. How smaller child, the more security it has.

In this regard, many people have a question about whether a woman can be fired at the initiative of the employer if she has small children. Of course, there are situations when even having children will not save you from being fired. Such situations include:

1. Committed by a woman during execution labor responsibilities violations of discipline or labor protection rules. If a woman regularly commits absenteeism, appears at work in drunk and so on, then the employer has the right to initiate the dismissal procedure, despite the fact that this woman has small children.

Any violation must be properly documented; appropriate acts, protocols, and so on must be drawn up. That is, the violation must be documented.

The legal portal website draws your attention to a widespread misconception. Some people believe that one labor violation and production discipline a woman is not enough for her to be fired. In fact, such violations are considered gross and even one correctly recorded case is enough to dismiss an employee, including a woman with small children.

• voicing information that is classified information;
• committing direct theft or actions leading to financial losses for the employer.

1. Deviation from labor protection requirements, resulting in a situation that led to a threat to the lives of other workers, injury to these workers or their death.
2. Getting a job or promotion using falsified documents (certificates, diplomas, etc.).

Any similar case may become a reason for the employer to dismiss a woman, even despite the presence of minor children.

However, along with this, there are also situations when dismissing a woman with children is not an easy matter for the employer. First of all, this concerns staff reductions. IN similar situation The presence of minor children will guarantee that the woman will not be fired.

The law prohibits the dismissal of women when staffing is reduced if:

• they are raising alone small child and this child is under 14 years old;
• if the family has several children under 18 years of age.

In other cases, the employer is obliged to take into account the presence of children of the woman and, with other factors being equal, keep them at work. If, nevertheless, such a woman was dismissed due to staff reduction, and another employee was left at work without any benefits, she has the right to seek help from supervisory or judiciary. Due to the fact that there is a clear violation of labor laws, the woman will be reinstated at work and will be paid for the time she is forced to be absent from the workplace.

In general, if the fact of dismissal has not yet occurred, and the woman has only been warned about this, then there is no point in going to court. It would be better to contact labor inspection and try to influence the situation. For the employer, this should already be a warning about the seriousness of the woman’s intentions in terms of defending her rights, and, most likely, he will consider problems with the court unacceptable for himself, especially since the violation of labor legislation on his part is obvious.

If, nevertheless, the dismissal due to staff reduction took place, then the woman should contact statement of claim to court. At the same time, a previous appeal to the labor inspectorate will testify in its favor. In addition, the labor inspector will not only provide legal assistance to the woman, but will also help during court hearings.

All of the above does not in any way apply to a situation where a woman herself wants to quit. No employer has the right to resist this desire. True, a woman will have to comply in any case established procedure, that is, written notification to the employer 14 days before dismissal.