Reducing staff is considered an unpleasant and difficult procedure, which consists in the need to terminate employment contracts with some employees. The employer must independently determine who will be fired from the company. In this case, the pre-emptive right is taken into account during the reduction that some hired specialists have. It allows citizens to stay at work, so the head of the company will have to focus on the dismissal of other specialists.
TC requirements
Reduction of employees should be carried out in the correct sequence of actions, for which the requirements of the Labor Code are taken into account. The main provisions include:
- Art. 81 TC contains the grounds under which it is allowed to use the reduction to reduce the number of employees in the company;
- Art. 82 of the Labor Code includes the procedure on the basis of which the opinion of the trade union organization is taken into account, since the employer is obliged to notify this body about planned changes in the company;
- Art. 178-180 of the Labor Code contain data on what compensation and guarantees are offered to dismissed citizens, as well as who has the preemptive right to reduce.
If the employer, for various reasons, violates the requirements of the law, this will certainly lead to the fact that the dismissal will be challenged in court.
Types of Reduction
Each company may use a reduction for various reasons. It is presented in two forms:
- reduction of employees when several people are selected from all employees of the enterprise with whom further cooperation is terminated;
- position, when any one position is removed from the company, since there is no need for it, therefore all people working in this position are dismissed.
The initiator of this process is only the director of the company. The pre-emptive right to work in case of reduction exists even if one position in the company is eliminated. Therefore, persons with this right can rely on a transfer to another position that corresponds to their abilities, skills and experience.
How are employees selected?
If a layoff is planned, the employer must choose a certain number of employees with whom the employment contract will be terminated. When choosing candidates, some features are taken into account:
- the competence and experience of each employee is evaluated;
- preemptive right is taken into account when reducing the number of employees, as it may be available to different hired specialists;
- large companies create a special commission, which uses an integrated approach in the process of evaluating employees;
- it is not even allowed to consider the possibility of reducing female workers on maternity leave or expecting a child;
- Initially, persons who cannot be dismissed are determined, and then all remaining candidates are evaluated.
It is important to consider during the choice not only the rights that citizens have, but also certain family circumstances of workers.
Who has the preemptive right to reduce?
Everyone should know what labor rights they have in order to defend them before the employer if necessary. The same applies to dismissal by reduction. The following employees have pre-emptive rights in case of staff reduction:
- pregnant women;
- workers on maternity leave;
- people raising a child alone who is not yet 14 years old;
- mothers with children under three years old;
- Workers with more than one dependent
- there are no other persons receiving income in the employee’s family, therefore this person is the breadwinner;
- people who have received an occupational disease or injury while working in this company;
- invalids of military operations;
- Persons engaged in continuing education on the job.
Some individuals retain the right to remain at work even with the provisions of a collective labor contract. Usually people who are near retirement age are indicated here.
When does it not work?
There are certain situations in which the pre-emptive right does not apply during reduction. These include the following cases:
- a separate workshop or department in the company is being reduced;
- the organization has one employee;
- any position in the company is eliminated.
Under such conditions, the employer must offer the laid-off employees the opportunity to transfer to other vacant positions available in the company.
Assessment of qualifications and other characteristics of employees
It is important to consider not only the pre-emptive right of workers when reducing, but also the characteristics of hired specialists. Therefore, initially, the employer identifies all employees who may be fired. Then it is revealed what abilities, skills and experience they possess. This is necessary in order to leave the most valuable and necessary specialists in the company. During the selection of employees, the following parameters are taken into account:
- the level of education;
- quality of the created products;
- the number of defective products made by a particular employee;
- rank or rank of specialist;
- percentage of overfulfillment of the norm;
- the presence of additional education that allows you to transfer a citizen to another position in the company;
- the presence of various rewards;
- the ability to transfer to the employee a particularly responsible task;
- the presence of different degrees and ranks;
- lack of downtime or violations of the TC;
- duration of work in the company;
- earlier involvement in any disciplinary action;
- opinion of the trade union organization;
- identification of unethical behavior on the part of the employee;
- causing material damage to the company during the entire period of work.
Most often, specialists who constantly violate labor discipline or fail to cope with their duties are selected for dismissal.
What mistakes are made by employers?
When granting pre-emptive rights while reducing the number of employees by the director, certain errors may be made. These include:
- when reducing accountants, it is difficult to determine the effectiveness of the work of such specialists, therefore, often employers refer to the fact that the performance is zero, although this is a significant violation of the employee's labor rights;
- the director, through various coercions, forces citizens with the preemptive right to write a letter of resignation of their own free will;
- the employer does not take into account the requirements of the law, therefore, refers to the content of the collective labor contract, although the information available in the Labor Code is binding;
- previously, the head of the company does not study which of the employees may remain at work, therefore, violates the labor rights of citizens.
Such material violations can lead to a hearing. Employees can rely on them not only for reinstatement, but also for compensation for non-pecuniary damage. When drawing up a claim, they refer to their pre-emptive right with a reduction in their stay at work.
Rules for the offer of another position
Based on Art. 180 TC before the reduction of the employees are offered other vacant positions available in the company. Transfer is allowed only with the official and written consent of the employees. Under such conditions, the salary or job duties of a specialist may change.
If another position is proposed, then it should be suitable for education and the person’s experience. Therefore, the janitor is not allowed to offer the opportunity to work as an accountant if he does not have the necessary knowledge and education.
What should employees do when their rights are violated?
With a reduction in the number of staff, the preemptive right provides certain hired professionals with the opportunity to stay in the company. But often the rights of employees are deliberately violated by the director of the company.
Under such conditions, the employee must protect his rights in the following ways:
- writing a complaint sent to the labor inspectorate;
- appeal to prosecutors;
- filing a lawsuit.
Employees of the labor inspectorate and prosecutors on the basis of an official statement will conduct an unscheduled audit of the company to identify violations for which the director is held accountable. In court, you can demand reinstatement or transfer of compensation.
The nuances of the trial
If the pre-emptive right to leave the employee was not taken into account during the reduction of staff, then the dismissed employee may file a lawsuit with the court. The features of such a trial include:
- the application is submitted to the district or city court;
- a lawsuit must be filed within 30 days after the illegal dismissal;
- if there is a good reason for missing the deadline, you can apply for its restoration;
- a lawsuit is filed with the court at the location of the company or place of residence of the claimant;
- documents confirming the validity of the applicant's requirements are attached to the application;
- claims are usually the need for reinstatement;
- may a citizen demand compensation;
- a meeting is held in the presence of both parties;
- if the claims are satisfied, the defendant must perform certain actions;
- Additionally, the company covers all legal costs.
If the plaintiff does not satisfy the decision of the court, then he can appeal within 15 days.
Responsibility of the head of the company
If the labor rights of downsized employees are violated, the employer may be held administrative, criminal or disciplinary liable. If the terms for transferring severance pay are violated, then not only this amount is paid, but also interest for each day of delay.
If the work book is not returned in time, then the company will pay a large fine. Therefore, company leaders must be responsive to their responsibilities related to the reduction of hired specialists.
Conclusion
When downsizing, the director must take into account that some employees have the right to remain in the company. It is formed on the basis of the status or family circumstances of a citizen. If the employee’s labor rights are violated, he can turn to the labor inspectorate for assistance or file a lawsuit.
The employer must additionally timely pay severance pay and issue labor books to laid-off hired specialists on time. Otherwise, he is held liable for violation of the rights of citizens.