 |
|
|
|
From the second half of the year 2008 world financial crisis covers all new spheres of economy. Many experts in this area say, that the company "has deserved" similar test and name it «natural selection» thanks to which the enterprises sanitation, and business is optimised. There can be it and so, but as a result of such "cleaning" in the street there are people, especially those who worked in the small private companies. Though and indirectly, but this problem has concerned also workers of our enterprise - UEIP. Relatives of many workers of factory have appeared in hard position. Someone have reduced in connection with staff reduction, someone has passed for the truncated working week and the working day. In this uneasy situation there is a set of questions, the majority from which has legal character. To answer most actual of them we have asked the leading legal adviser of legal department of combine Sergey Vladimirovicha Sherstkova
On a photo: C. V.Sherstkov - the leading legal adviser of a legal department of a UEIP
Question: Recently, in connection with economic and financial crisis in the world, in many organisations there is a staff reduction. How the employer can prove the given reduction?
Answer: number Reduction is a reduction of numerical structure of workers of certain posts, and reduction of the staff - an exception of the list of staff of separate established posts. The employer independently defines structure and organisation staff, thus, he has the right to make changes to the list of staff of the organisation and to reduce posts. At the resolution of disputes about dismissal in court the legislation does not provide a duty of the employer to prove necessity of cancellation of the employment contract. It is important to notice, that at reduction of number of workers of the organisation vacant units, and only first of all come under to reduction after that the occupied are reduced.
Question: to Whom the preference is given at reduction of number or states of workers of the organisation?
Answer: According to part 1 item 179 of the Labour code of the Russian Federation the right of priority to leaving to work is given to workers with higher qualification and labour productivity. The employer makes the decision by comparison of skill levels and labour productivity of workers. Qualification of the worker is its degree professional education, the readiness, expressed in level of experience, knowledge and the skills necessary for performance of a certain kind of work. Qualification of the worker is defined by the category or a category.
Thus, it is possible to confirm qualification of the worker, for example, with documents on formation, on improvement of professional skill, professional retraining, extracts from reports of the commissions on assignment of qualifying categories (categories), etc.
Besides, it is necessary to consider, that according to a part 2 items 179 of the Labour code of the Russian Federation at equal labour productivity and qualification the preference in leaving on work is given to family workers in the presence of two and more dependents (the invalid members of a family being on the full maintenance of the worker or receiving from it the help which is for them to constants and the basic source of means of subsistence), to persons in which family there are no other workers with independent earnings, the workers who have received in the given organisation the employment injury or occupational disease, invalids of the Great Patriotic War and invalids of operations on Fatherland protection, the workers raising the qualification in a direction of the employer without a separation from work.
According to article 261 of the Labour code of the Russian Federation on reduction of the staff pregnant women and the women having the child cannot be dismissed is elderly till three years, and also the unwed mothers who are bringing up the child are elderly till 14 years (the child-invalid till 18 years). Besides, by the collective agreement other categories of workers the organisations using the right of priority to leaving on work at equal labour productivity and qualification can be provided.
Question: In the organisation there has passed process of reduction of number of workers. My daughter, despite the fact that what it has the leaving right of priority to work (wide experience of work on specialities, presence of two small children who are brought up only to it), have dismissed on the basis of item 2 of article 81 of the Labour code of the Russian Federation, having warned about dismissal for two weeks, and that in the oral form. How much all it is lawful and how it is possible to arrive in this situation?
Answer: According to item 2 of article 81 of the Labour code of the Russian Federation the employment contract can be terminated at the initiative of the employer in case of reduction of number or staff of workers of the organisation.
As it has been noted in the previous answer, on the basis of article 179 of the Labour code of the Russian Federation at reduction of number or staff of workers of the organisation the right of priority to leaving to work is given to workers with more high efficiency of work and qualification. In your case, at equal labour productivity and qualification, the preference in leaving on work should be given family - in the presence of two or more dependents, i.e. the invalid members of a family being on the full maintenance of the worker or receiving from it the help which is for them to constants and the basic source of means of subsistence. Thus according to norms of article 180 of the Labour code of the Russian Federation at carrying out of actions for reduction of number or staff of workers of the organisation to the employer the duty is made to offer the worker other available work (a vacant post) in the same organisation, corresponding to qualification of the worker. About forthcoming dismissal in connection with reduction of number or staff of workers of the organisation workers are warned by the employer personally and on receipt not less than two months prior to dismissal.
Thus, in your case the employer had been very coarsely broke procedure of cancellation of the employment contract with the employee. You, on the basis of norms of article 391 of the Labour code of the Russian Federation, have the right to address in courts of justice for protection of the broken rights.
Question: What payments are due to the worker in case of dismissal on reduction of the staff?
Answer: At employment contract cancellation in connection with reduction of number or staff of workers of the organisation (article 81 of the Labour code of the Russian Federation) the severance pay at a rate of average monthly earnings is paid to the dismissed worker, and also behind it average monthly earnings for employment, but not over two months from the date of dismissal (including the severance pay) remain. In unusual cases average monthly earnings remain for the dismissed worker within the third month from the date of dismissal under the decision of body of service of employment of the population under a condition if in fortnight term after dismissal the worker has addressed in service of employment of the population and have not been employed. According to the law «About the Closed administrative-territorial formation» average monthly earnings remain for the dismissed worker about six months from the date of dismissal under the decision of body of service of employment of the population.
UEIP MASS-MEDIA
(c) 2007-2025 Uranium, energy and industry | Copying of site materials is allowed with an active link to ueip.org
Privacy policy | Contact
