Theory of everything. Theory of everything Comments on Article 180 of the Labor Code of the Russian Federation

In an unstable economic environment, when companies are regularly frozen, reorganized or liquidated, many employees are at high risk of being fired or laid off.

The Labor Code of Russia regulates the procedure for dismissals of this kind, and provides employees with certain guarantees and compensation from employers (). Let us consider in more detail all the points of this article.

Providing a vacant position (Part 1)

The first part of Article 180 obliges an employer who is going to reduce staff or personnel to offer vacant positions at his enterprise to persons falling under this category.

An offer to occupy another internal position must take into account the existing qualifications of the employee: for blue-collar occupations, qualifications are determined by rank, and for the category of employees - by education (assigned degree, rank).

An employer may also offer replacement employment for workers who are absent for some reason.

For example, due to:

maternity leave (maternity leave);
long sick leave;
business trips.

If there are no employment options corresponding to the category of the employee being dismissed, the employer may also offer him lower positions. In this case, the employee must be explained his duties and salary for them. A lower-paid job must also correspond to the worker’s experience, length of service, education and physical condition.

Offers from the employer for available vacancies must be received during the entire period of notice of the upcoming termination of the employment relationship.

For some types of employees, employment guarantees during layoffs have a higher level.

Let's look at them:

for civil servants - if there are no vacancies in the current government structure, an offer of a vacancy in another government must be made. authority, taking into account existing qualifications, assigned ranks and categories. This guarantee is enshrined in the Law “On Civil Service” (Article 16);
An employee of a government agency is also provided with a guarantee in the form of retraining. That is, upon warning of an impending termination of the employment contract, a civil servant has the right to demand professional retraining. At the same time, for the duration of the training, he retains continuous experience and is paid a salary (equivalent to the previously held position and salary for it).

Important! Employees not related to the civil service do not have the right to demand retraining from the employer during the notice period for dismissal.

Notice of dismissal (Part 2)

Second part of Art. 180 states that the employer is obliged to notify workers of dismissal or reduction 2 calendar months in advance.

Mandatory notification requirements:

Written form.
An exact indication of the date of termination of the employment contract.
The employee's familiarization is confirmed by a signature indicating the exact date of familiarization.

If an employee refuses to confirm familiarization in writing, the employer must draw up a statement of refusal.

2 months begin to count from the next day after notification. The employer has the right, on his own initiative, to postpone the period of suspension from work to a later date. Increasing the notice period increases the likelihood of employees being hired.

The employee has the right to go to court and change the date of dismissal if the notice period has not been met. In this case, the period of shifting the date of dismissal must be paid based on the average salary.

An employee who was on sick leave during the notice period, but before its end, does not have the right to postpone the date of reduction, taking into account the period of temporary disability. But if the employee is on sick leave by the end of the notice period, then the employment contract with him is terminated only after the sick leave is closed.

Termination of employment relations without warning (Part 3)

Termination of an employment relationship may also occur without complying with the mandatory notice period. This possibility is spelled out in the third part of Article 180.

Let's take a closer look:

The employee must receive an offer from the employer to resign without observing the mandatory notice period.
The employee gives written consent to the offer from the employer.

If the dismissal occurs in this scenario, then the employer is released from the obligation to provide the employee with vacancies.

Important! The date of dismissal is determined by the employer.

An employee has the opportunity to cancel his written consent to dismissal without 2 months of notice only before signing the order or order of dismissal. This clause also provides for the possibility of terminating the employment relationship by mutual consent - before the end of two months of notice. In this case, as a rule, the initiator is the employee. The employee has the right to compensation for unworked time (within a two-month period). Payment of compensation occurs on the day of dismissal (simultaneously with severance pay).

Employer reporting to the employment service (part 4)

In the final paragraph of Art. 180 provides for the employer’s obligation to inform the employment service, as well as trade union bodies, about planned layoffs and reductions. This is done 3 months before such events.

The employer submits a complete list of employees who are subject to reduction and dismissal, indicating their positions, categories, numbers, as well as the likely timing of termination of the employment relationship.

In case of mass layoffs, trade unions are obliged to protect the interests and rights of their members. Therefore, they are also actively negotiating with employers about the reasons for mass layoffs and possible employment options for employees.

The employer must also take into account existing industry and territorial agreements governing mass layoffs. These agreements are aimed at regulating and reducing the number of workers dismissed during layoffs and ensuring their continued employment.

In certain territories (with a tense situation in the labor market), at the proposal of the employment service or trade union, local government can block employers’ decisions on mass layoffs and layoffs for up to 6 months.

Additional guarantees

During the period of notice about the upcoming termination of employment, the employee has the right to independently search for work and contact the employment service. In order to implement this opportunity, collective agreements stipulate the employee’s right to take 1 day a week for interviews (the salary for this day is retained by the employee).

Article 178. Severance pay

Upon termination of an employment contract due to the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly salary, as well as for he retains the average monthly salary for the period of employment, but not more than two 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 body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.

Severance pay in the amount of two weeks' average earnings is paid to the employee upon termination of the employment contract due to:

the employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (clause 8 of part one of Article 77 of this Code);

calling up an employee for military service or sending him to an alternative civil service replacing it (clause 1 of part one of Article 83 of this Code);

reinstatement to work of an employee who previously performed this work (clause 2 of part one of Article 83 of this Code);

the employee’s refusal to be transferred to work in another area together with the employer (clause 9 of part one of Article 77 of this Code);

recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation (clause 5 of part one of Article 83 of this Code);

refusal of the employee to continue working in connection with a change in the terms of the employment contract determined by the parties (clause 7 of part one of Article 77 of this Code).

An employment contract or collective agreement may provide for other cases of payment of severance pay, as well as establish increased amounts of severance pay, with the exception of cases provided for by this Code.

Article 179. Preferential right to remain at work in the event of a reduction in the number or staff of employees

When the number or staff of employees is reduced, 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 - 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 their constant and main source of livelihood); persons in whose family there are no other independent workers; employees who received a work injury or occupational disease while working for this employer; disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland; employees who improve their qualifications in the direction of the employer without interruption from work.

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

Article 180. Guarantees and compensation to employees in the event of liquidation of an organization, reduction of the number or staff of employees of the organization

Employees are warned by the employer personally and against signature at least two months before dismissal about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees.

The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

If there is a threat of mass layoffs, the employer, taking into account the opinion of the elected body of the primary trade union organization, takes the necessary measures provided for by this Code, other federal laws, a collective agreement, and an agreement.

Article 181. Guarantees to the head of the organization, his deputies and the chief accountant upon termination of the employment contract due to a change in the owner of the organization’s property

In the event of termination of an employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the organization’s property, the new owner is obliged to pay compensation to the specified employees in the amount of not less than three times the employee’s average monthly earnings, except for cases provided for by this Code.

Article 181.1. Severance pay, compensation and other payments to employees in certain cases of termination of employment contracts

A collective agreement, agreements, local regulations, employment contracts or decisions of the employer, authorized bodies of a legal entity, as well as the owner of the organization’s property or persons (bodies) authorized by the owners cannot provide for the payment of severance pay, compensation to employees and (or) the assignment of any kind to them. or other payments in any form in cases of dismissal of employees on grounds that relate to disciplinary sanctions (part three of Article 192 of this Code), or termination of employment contracts with employees on the grounds established by this Code, other federal laws, if this is related to the commission of offenses by employees actions (inaction).

When carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with.

Commentary to Art. 180 Labor Code of the Russian Federation

1. Liquidation of an organization, reduction of the number or staff of employees may be carried out subject to mandatory compliance by the employer with the conditions provided for in this article.

2. Among these conditions:

a) offering the employee another available job (vacant position);

b) a personal warning to the employee in writing against signature about the upcoming dismissal at least two months before the dismissal;

c) taking necessary measures in the event of the threat of mass layoffs.

3. Criteria for mass dismissal of workers due to reduction in numbers or staff, according to Art. 82 Labor Code of the Russian Federation. are enshrined in industry and (or) territorial agreements.

See commentary to Art. 82 Labor Code of the Russian Federation.

Second commentary to Article 180 of the Labor Code

1. A prerequisite for the legality of termination of an employment contract due to a reduction in the number or staff of an organization’s employees is the employer’s fulfillment of the obligation to take measures aimed at finding employment for the employee. These measures consist of the employer selecting for this employee another job in the same organization. The Code obliges the employer to offer the employee another available job (vacant position) in the same organization that matches the employee’s qualifications. It is obvious that the proposed work must correspond not only to the qualifications of the employee, but also to his profession and specialty. In addition, the employer’s obligation to employ an employee subject to layoffs should be considered fulfilled in the case when, in the absence of work in the specialty and 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 of the number or staff of employees is the mandatory warning of the employee by the employer personally against signature at least two months before dismissal. The employee may be warned for a longer period of time, which is not a violation of the law.

Personal warning means that each individual employee must be personally warned of the upcoming dismissal. Therefore, this condition is not considered fulfilled if employees received such a warning, for example, at a general meeting of the labor collective or at a meeting of employees of a separate structural unit of the organization. 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 warning him of dismissal two months in advance, with the simultaneous payment of additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (payment severance pay upon dismissal, see commentary to Article 178 of the Labor Code of the Russian Federation). In this case, upon dismissal, the employee must be paid the appropriate amount, including the average monthly earnings, then the average monthly earnings for the period of employment must be retained for the second, and, by decision of the employment service authority, for the third month. Dismissal of an employee upon his written application before the expiration of the notice period without payment of additional compensation under paragraphs. 1, 2 tbsp. 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.

Text of Article 180 of the Labor Code of the Russian Federation in the new edition.

When carrying out measures to reduce the number or staff of an organization's employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of this Code.
Employees are warned by the employer personally and against signature at least two months before dismissal about the upcoming dismissal due to the liquidation of the organization, reduction in the number or staff of the organization's employees.

N 197-FZ, Labor Code of the Russian Federation, current edition.

Commentary to Art. 180 Labor Code of the Russian Federation

Comments on articles of the Labor Code will help you understand the nuances of labor law.

§ 1. A mandatory condition for the legality of termination of an employment contract in connection with a reduction in the number or staff of an organization’s employees is the employer’s fulfillment of the obligation to take measures aimed at finding employment for the employee. These measures consist of the employer selecting for this employee another job in the same organization. The Code obliges the employer to offer the employee another available job (vacant position) in the same organization that matches the employee’s qualifications. It is obvious that the proposed work must correspond not only to the qualifications of the employee, but also to his profession and specialty. In addition, the employer’s obligation to employ an employee subject to layoffs should be considered fulfilled in the case when, in the absence of work in the specialty and 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 of the number or staff of employees is the mandatory warning of the employee by the employer personally against signature at least two months before dismissal. The employee may be warned for a longer period of time, which is not a violation of the law.

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 warning him of dismissal two months in advance, with the simultaneous payment of additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (payment severance pay upon dismissal, see commentary to Article 178 of the Labor Code). In this case, upon dismissal, the employee must be paid the appropriate amount, including the average monthly earnings, then the average monthly earnings for the period of employment must be retained for the second, and, by decision of the employment service authority, for the third month. Dismissal of an employee upon his written application before the expiration of the notice period without payment of additional compensation under paragraphs. 1, 2 tbsp. 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.

The following commentary to Article 180 of the Labor Code of the Russian Federation

If you have questions regarding Art. 180 TK, you can get legal advice.

1. When carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) that corresponds to the employee’s qualifications.

Work corresponding to the employee’s qualifications should be understood as any other work that the employee is able to perform due to his actual qualifications, including work of lower qualifications compared to what the employee previously performed.

In practice, the employer presents the employee with a list of available vacancies simultaneously with a warning about the upcoming dismissal.

Termination of an employment contract due to a reduction in the number or staff of an organization's employees is possible only if the employer does not have a job that would correspond to the employee's qualifications or if the employee refuses to be transferred to another job. At the same time, the employer is obliged to offer vacancies that the employer has in other localities, if this is provided for by the collective agreement, agreement, or employment contract (see Article 81 of the Labor Code and the commentary thereto).

2. The employer has the right, with the written consent of the employee, to terminate the employment contract with him without notice of dismissal two months in advance, while simultaneously paying additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

The employee’s written consent to terminate the employment contract without completing the established two-month period can be expressed by reading the relevant order of the employer against receipt or by a separate written document (employee statement), in which he expresses his consent to dismissal without completing the specified period.

Along with the obligation to warn about the upcoming dismissal of an employee, the employer is obliged to notify the relevant trade union and government bodies about the dismissal in advance (see Articles 81, 82 of the Labor Code and comments thereto).

3. The rules established by Art. 180 of the Labor Code, apply only to cases of reduction in the number or staff of an organization’s employees, as well as liquidation of an employer - a legal entity. Guarantees and compensation to employees in the event of termination of the activities of an employer - an individual, as well as in the event of a reduction in the number or staff of employees employed by him are established in accordance with the procedure of individual contractual or collective contractual regulation.

Art. 180 Labor Code of the Russian Federation (new edition) establishes the rights of the employer when reducing the number of employees or liquidating an enterprise. The norm also defines his duties in relation to employees with whom he terminates the contract. Let's consider the main provisions Art. 180 Labor Code of the Russian Federation with comments.

In Art. 180 of the Labor Code of the Russian Federation establishes the obligation of an employer carrying out measures to reduce the number of personnel to offer employees another job (vacant position), in accordance with Article 81 of the Code. The manager must notify everyone personally about the upcoming termination of contracts in connection with the liquidation of the organization or reduction in staff, signed by signature, no later than 2 months in advance. Part 3 Art. 180 Labor Code of the Russian Federation allows the termination of employment relations with an employee with the written consent of the latter before the end of the period specified above. In this case, the employee is entitled by law to additional payment. It is the average salary of the employee, calculated in proportion to the time remaining until the end of the notice period. If massive dismissal, according to Art. 180 Labor Code of the Russian Federation, the employer, taking into account the opinion of trade union representatives, takes all measures provided for in the Code, collective agreement, federal legislation and contract.

Explanations

Art. 180 of the Labor Code of the Russian Federation imposes on the employer the obligation to ensure internal employment of employees who are laid off. Among the criteria that apply to other work, it is established that a vacant position must be offered. Other requirements are set forth in Article 81 (Part 3) of the Labor Code of the Russian Federation. The employer has the right to offer the employee to perform the professional duties of a temporarily absent employee due to a long illness, being on a business trip, parental leave, etc. In this case, the manager must explain to the employee his responsibilities and notify him of the amount of earnings. This proposal must come from the employer not only directly on the day of notification of the upcoming layoff, but also during the period allotted for warning if positions suitable for the employee become vacant at the enterprise. Failure to comply with this requirement indicates that the manager is not properly complying with his duties regarding the employment of personnel.

Important point

An employee who has been notified of upcoming events cannot demand that the manager provide him with the opportunity to undergo advanced training, education, or professional training, if the enterprise has relevant positions that he could apply for later. But if his position is liquidated due to a violation of occupational safety standards, the employee can count on retraining on the basis of Article 219 at the expense of the employer.

Notification

Art. 180 of the Labor Code of the Russian Federation requires that each employee be notified of upcoming events personally against signature. In this case, the norm establishes a specific period for notification. Employees are notified no later than 2 months in advance. before dismissal. If the employee refuses to sign the notice, a report is drawn up. Regardless of this, the notice period begins to run from the next day after notification.

Special cases

The employer, warning the employee about future dismissal, indicates the specific calendar date of dismissal. If this date is subsequently postponed at the initiative of the manager to a later time, the employment relationship will be extended. This, in turn, increases the employee's chances of getting another job. The legality of these actions of the manager is explained by his initiative to terminate the contract.

Disability

If at the end of the notice period the employee being relieved of his position was ill, the employer terminates the contract after recovery. In some cases, the period of incapacity for work begins after the warning and ends before the expiration of two months. In such situations, the employee cannot demand an extension from the employer.

Clause 3 art. 180 Labor Code of the Russian Federation

It provides for the employer's ability to terminate the contract during the notice period. In doing so, he complies with the following conditions:

The employee must be notified no later than 2 months. until the end of the legal relationship.
The employer's appeal with a corresponding proposal in connection with the reduction in personnel or liquidation of the enterprise should be sent to the employee after the warning, and not before it.
The employee must consent (in writing) to early termination of the contract.

Due to the fact that the initiative to terminate the relationship usually comes from the employer, he establishes, in accordance with Part 3 of Art. 180 Labor Code of the Russian Federation, specific date. However, such an offer may also come from an employee. Termination of the contract in such a situation depends on the discretion of the manager. According to Art. 180 of the Labor Code of the Russian Federation, severance pay and additional compensation for early termination of relations are paid on the same date. It is the day of official termination of the contract.

Interaction with the employment service

When making a decision to reduce staff or liquidate an enterprise, the employer must inform in writing the authorized bodies operating in the field of employment of citizens. The notification is sent no later than 2 months before the termination of relations with employees. In the notice, the employer indicates the profession, position, qualification requirements, specialty, and terms of payment of remuneration for each employee. If a decision to reduce the number of personnel may provoke mass layoffs, then notification is provided no later than three months before the proposed implementation of the measures. The spontaneous release of employees can be due to various reasons. For example, this could be rationalization of production, repurposing an organization or its divisions, improving working conditions, partial/complete suspension of activities, and so on.

Relations with the trade union

Liquidation of an enterprise (its divisions), change in organizational and legal type or form of ownership, partial/complete suspension of activities, resulting in a reduction in the number of positions or deterioration of conditions, can be carried out only after notifying the elected body of employees. Notification is sent no later than 3 months. before the expected start date of the activities. At the same time, negotiations are held with the trade union on issues of respecting the interests and rights of employees. The representative body may submit proposals for consideration by local government structures to reschedule or temporarily suspend the implementation of measures related to the mass release of employees. Responses to these requests are formulated and sent in the manner prescribed by law.

Collective agreement

In Art. 180 of the Labor Code of the Russian Federation, this act is mentioned among the documents establishing additional requirements for the employer. The collective agreement prescribes measures aimed at reducing the number of laid-off employees and ensuring their employment. The relevant section may include:

In the event of a short-term decrease in production volume, measures can be taken to prevent staff reductions. For example, this could be a temporary suspension of hiring employees for vacant positions.

Capabilities of authorities

Executive structures at the regional or territorial level have the right, at the proposal of the employment center, to suspend for a period of up to six months the decision of managers on mass layoffs. Specific deadlines may be set according to the unemployment rate. If it is 3-5% of the number of employees, the suspension period is 1 month, if 5-7% - 2, 7-9% - 3, over 11% - 6 months. In the latter case, a gradual release of workers may be envisaged. It is carried out within the following time frames:

Financial support for measures to gradually release employees or suspend layoffs is made from budgetary funds. Enterprise managers have the right to participate in the development of relevant decisions taken by authorities, as well as in the discussion of issues related to mutual settlements. State structures exercise powers to develop and implement regional programs, which include measures aimed at promoting employment of the population, including citizens who are at risk of dismissal, are in particular need of social protection and have difficulty finding work.