Are there any differences in the reduction of part-time workers due to staff reduction? What is the procedure for dismissing internal and external employees combining work on this basis? What payments are due to these categories of workers? Both personnel officers and enterprise employees need to understand these points.

Rights of part-time workers

The rights of part-time workers are discussed in Article 287 Labor Code. It states that such groups of workers should receive compensation, as well as guarantees on the same basis as other employees upon dismissal due to staff reduction.

That is, according to the general rules, persons carrying out labor activity part-time, must send notifications at least 2 months before the expected change in the number of staff.

They, like others, must be offered the remaining vacancies during this period, and they have the right to make a decision up to the date of the intended termination of employment. But these nuances apply only in case of dismissal due to reduction external part-time worker because he may lose his job.

The reduction of a part-time internal worker occurs differently, since he works in two positions for one employer. If they want to cut one of his jobs, he will still remain employed, so the manager should not offer him any other alternative jobs at the same enterprise.

In the event that there is a choice about who needs to be laid off, the most qualified and experienced employees, as well as those who have an advantage in cases of equal experience, are retained first of all.

Important! Decision making does not depend on whether a person combines positions or not.

At the same time, it is impossible to lay off external part-time workers who are included in one of the categories not subject to dismissal. These include:

• workers on vacation;
• temporarily disabled;
• having children under 3 years of age.

There are situations when a person combining work in an organization is fired in order to free up a vacant position for other employees. Or, with internal part-time work, one employee is limited in position at the expense of another.

These actions are unlawful, since the manager has no grounds to deprive the employee of his job. If a position is being eliminated, it should be removed from the staff and not offered to another employee.

Dismissal procedure

Example of a notification.

The algorithm of actions for management begins with the fact that, together with members of the trade union organization, if there is one, methods are discussed that can help optimize work. The following is the order:

1. They choose those with whom they can part without loss for the institution.
2. The Employment Center is notified of the upcoming influx of unemployed.
3. Employees who are about to be dismissed are sent notices 2 months before the planned date of dismissal.

The text of the notification for part-time workers is the same as for other employees.

Notification of layoff of part-time worker.

Sometimes this option is possible.

Notification of reduction of part-time position.

In the notification, if it is the position of an external part-time worker who is being eliminated, you can immediately list possible options available vacancies. Those jobs that will be released later must also be presented to the employee in writing.

Those being laid off have the right to resign early without waiting for the set date. Then they need to draw up a corresponding statement, then an order will follow from their superiors.

If a worker has expressed a desire to stay until the day of layoff and has not found a suitable vacancy at the given enterprise, the manager issues a dismissal order based on the layoff document.

1. The person being dismissed is introduced to the order under his signature.
2. A record of termination of the employment contract is made in the personal card.
3. A settlement note is drawn up; it must contain information about the employee’s work in the organization and mandatory payments.
4. Prepare copies of documents and certificates that may be needed in the future.
5. Make a calculation.
6. A serial entry is made in the labor record, and it is given to the person who quit.

Thus, the procedure is similar to the generally accepted termination of employment relations.

Difference in payments

The difference that is possible when dismissing those employees who combine work lies in the number of payments.

In case of a general layoff, in addition to basic accruals, the employee is entitled to severance pay, as well as assistance in finding employment for 2 months. The amounts must be at least one average salary.

But if an internal part-time worker is laid off, he remains employed in his main position, which means that no financial assistance is required for employment, and the remaining payments, including a one-time severance pay, will be made in accordance with wages, which a person in a reduced position received.

If an employee who worked for two different employers leaves, then all payments due to him as a laid-off employee must be paid on the day of dismissal.

If he wants to terminate his relationship with his employer ahead of schedule, he is paid compensation in accordance with the salary that he had in this position for those days that remained before the date of reduction.

Combining positions in one organization or combining work at different enterprises is not prohibited by law. The main thing is to know about your rights during the period of layoffs. An incorrect procedure for terminating an employment relationship, including incorrect payments, may result in going to court or the labor inspectorate.

When dismissing part-time workers, employers need to take into account the specifics of their legal status in labor relations in order to avoid mistakes, violations of labor legislation and the emergence of legal disputes with dismissed employees. In this article we will try to understand the peculiarities of dismissing part-time workers.

Part-time job- this is the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job. Moreover, according to general rule concluding employment contracts for part-time work is allowed with an unlimited number of employers.

In other words, part-time work is a very common type of additional work when an employee free time works under a second (third, etc.) employment contract concluded with the same or another employer, and receives a second (third, etc.) salary for this.

SHOULD I FIRED A PART-TIME WORKER WHO BECOME THE MAIN EMPLOYEE?

Often an external part-time worker who quit his main job wants to continue labor Relations with the employer for whom he worked part-time, already as the main employee.

In such a situation, employers have several natural questions:

1. Does an external part-time worker who quits his previous job become the main employee for his second employer?

2. If this is so, is it possible not to terminate the previously concluded employment contract for part-time work, but to make changes to it related to the recognition of the work as the main one?

Similar questions were repeatedly raised before officials from Rostrud. Answering the first of them, they at one time came to the following conclusion:

In order for a part-time job to become the main one for an employee, it is necessary that the employment contract at the main place of work be terminated, with a corresponding entry made in work book. In this case, part-time work becomes the main one for the employee, but this does not happen “automatically”. It is necessary to make changes to the employment contract concluded for part-time work (for example, stating that the work is the main one, as well as if the employee’s work schedule and other conditions change). […]

In addition, only with the consent of the employee, it is possible to terminate an employment contract for part-time work (for example, by agreement of the parties, by at will), and then concluding an employment contract with other conditions. At the same time, appropriate entries are made in the employee’s work book. Thus, Rostrud lawyers rightly give a positive answer to the first question, but emphasize that any legal action, including changing the terms of an employment contract, requires documentation.

The officials answered the second question in two ways. As we see, it is permissible to change a previously concluded employment contract for part-time work, and its termination with the subsequent hiring of the former part-time worker to the main place of work under a new employment contract.

However, in Lately Rostrud specialists increasingly support the latter option. Thus, Deputy Head of the Department for Supervision and Control of Compliance with Labor Legislation Federal service on Labor and Employment of the Russian Federation T. M. Zhigastova noted in her interview that in a situation where a part-time worker quits his main place of work and wants part-time work to become his main job, and his employer does not object to this, in order to exclude violations related to registration of a work book, you still need to first dismiss this part-time employee, and then rehire him, but as a main employee in compliance with the procedure established by labor legislation. This approach can be fully supported, since only it allows employers to avoid problems with registering the work book of a part-time worker who has changed his status.

In fact, the transition of an employee from a part-time job to his main place of work cannot be considered a transfer to another job, since neither the worker’s labor function nor structural subdivision, in which it works, but does not change. Only the nature and working conditions are transformed, but these changes themselves are not recorded in the employee’s work book, which prevents them from being correctly reflected in personnel documents. Nevertheless, Rostrud gives recommendations on what entries are possible in the work book in the event of reassignment of a part-time worker to the main job without dismissal, through an additional agreement to the employment contract.

Extract from the letter of Rostrud dated October 22, 2007 No. 4299-6-1

If there was no entry in the employee’s work book about part-time work, then in the employee’s work book, after the record of dismissal from the main place of work, the full name of the organization is indicated in the form of a heading, as well as the abbreviated name of the organization (if any). Then a record is made of the employee’s hiring from the date of commencement of work for a specific employer with reference to the relevant order (instruction) and indicating the period of work as a part-time worker.

If the employee’s work book contains a record of part-time work, made at one time at the main place of work, then after the record of dismissal from the main place of work and the record of the full, as well as the abbreviated (if any) name of the organization in In the work book, an entry should be made stating that from such and such a date, work in such and such a position became the main one for this employee. Column 4 makes reference to the relevant order (instruction).

DISMISSAL OF A PART-TIME WORKER DURING STAFF REDUCTION

The legislator does not exclude the possibility of dismissing part-time workers due to a reduction in the number or staff of the organization’s employees ( individual entrepreneur). It is known that one of the guarantees provided to employees dismissed on this basis is payment of severance pay in the amount of their average monthly earnings. Besides, average earnings remain the same for such employees and for the period of their employment, but not more than two months from the date of dismissal (including severance pay), and in exceptional cases - during the third month after the day of dismissal (by decision of the employment service body, adopted provided that within two weeks after dismissal, the employee contacted this body and was not employed by it).

Guarantees and compensations provided for by labor legislation and other regulatory legal acts on labor, collective agreements, agreements, local regulations, are provided to part-time workers in full. The exception is guarantees and compensation for persons combining work with training, as well as for persons working in areas Far North and equivalent areas, which are provided only at the main place of work.

As we can see, formally the law does not include the guarantees to which an employee is entitled when staff are reduced among those provided only at the main place of work. Therefore, some experts come to the conclusion that part-time workers being laid off are not only paid severance pay, but also retain their average earnings for the period of their employment.

However, there is another position on this issue. In particular, Deputy Director of the Department of Wages, Labor Safety and Social Partnership of the Ministry of Health and Social Development of Russia N.Z. Kovyazina notes the following: “When dismissed due to a reduction in the number (staff), part-time workers are paid only severance pay. Average earnings for the period of employment for the second and third months after their dismissal not saved, since they have a main place of work and are employed.” This position is supported by many other experts.

Analysis of the norms of Art. 178 of the Labor Code of the Russian Federation leads us to the conclusion that the goal of preserving the average earnings of a laid-off employee for the second and third months after dismissal is his material support for the period of job search. And if a laid-off employee finds a job, for example, before the end of the second month after dismissal, then his average earnings will be retained and paid only until he starts a new job.

A shortened part-time worker at the time of dismissal, as a rule, has a main place of work, that is, in fact he is employed. Therefore, he does not need financial support during the search period. new job. Consequently, he usually does not have the right to receive the payment we are considering, which is of a purely targeted nature. But if by the time of dismissal due to reduction a part-time worker I've already lost my main job due to dismissal for any reason, then the average salary for the period of employment must be retained by the employer for whom he worked part-time.

This means the termination of a fixed-term employment contract with a part-time worker on the basis provided for in Art. 288 of the Labor Code of the Russian Federation will be illegal.

When applying this ground for dismissal, it is important to take into account that the legislator is talking about the employer’s right to hire the main employee, that is, about the initial conclusion of an employment contract with him, and not about the internal transfer of another employee to a position previously occupied by a part-time worker. At the same time, a new employee can be hired for the main job both on a full-time basis and on other conditions (for example, part-time or part-time).

Unfortunately, employers do not always correctly understand the conditions under which it is possible to apply the grounds for dismissal we are considering, which inevitably leads to labor disputes with part-time employees. Let's give an example from judicial practice, showing that the newly hired employee instead of a part-time worker must do exactly the work that the dismissed part-time worker had previously done.

ARBITRAGE PRACTICE

Resolution of the Presidium of the Moscow City Court dated October 10, 2008 in case No. 44g-391

Citizen F., who worked part-time as an electromechanic for elevators in RU-7, was fired due to the hiring of an employee in his place, for whom this work became the main one. Citizen F. challenged his dismissal, believing that it was illegal. The Izmailovsky District Court of Moscow refused to satisfy F.’s claim, the judicial panel civil cases The Moscow City Court left the court's decision unchanged. But the Presidium of the Moscow City Court overturned these court decisions, indicating the following: “Refusing the claim for reinstatement, the court proceeded from the fact that the defendant presented evidence that F. worked ... part-time, while S. was hired main place of work. However, the court did not take into account that the circumstance that is important for the correct resolution of claims for reinstatement at work of persons whose employment contract was terminated under Art. 288 of the Labor Code of the Russian Federation, in addition to establishing the fact whether the employee was hired by the employer for the main place of work, there will also be a circumstance whether he performs accepted employee the same job as a part-time worker. F. was hired by the defendant for the position of electrician for elevators of the 6th category part-time... S. was hired for the position of electrician for elevators of the 3rd category, permanently, according to the staffing table, without the right to work independently... Since the court did not check that circumstance, he performs whether the hired employee S. did the same job as part-time employee F., that is, the court did not fully investigate and establish all the circumstances relevant to the case, this led to the adoption of an illegal and unfounded decision.”

The dismissal of part-time workers has some peculiarities. This article will discuss the reduction of part-time workers due to staff reductions, dismissal of one's own free will, and dismissal when hiring a main employee.

Part-time workers are the same employees of the company as everyone else. The only difference is that they work for less time. In this regard, their dismissal occurs according to general rules.

Employers do not have the right to fire part-time employees who are on vacation or sick leave.

If a part-time worker worked under a fixed-term employment contract, the part-time worker can be laid off no earlier than the term of this contract expires.

If the contract between the employer and the part-time worker is indefinite, then the employer has every right to dismiss the part-time worker if a main employee is found in his place.

Dismissal due to staff reduction

If the dismissal of a part-time employee occurs due to a reduction in the number of staff, the employer is obliged to warn the dismissed employees about this at least two months in advance. Notice of dismissal must be given against signature.

The legislation has not developed a specific form of notification to employees. In this regard, employers can write a notice of layoff of an external part-time worker in a free format.

The legislation states that the dismissal of a part-time worker for this reason can only be carried out if it is not possible to transfer him to another position available to the employer. It is the employer's responsibility to offer the part-time worker all vacant positions.

That is, the procedure for laying off part-time workers due to staff reduction is carried out in general procedure. When carrying out this procedure, employers are required to comply with all provisions of labor legislation relating to this issue. If the employer does not comply with all these provisions, the dismissal will be considered illegal. In such a situation, the employer will have to reinstate the part-time worker in his previous position.

Dismissal of a part-time employee at his own request

If a part-time employee decides to resign due to own initiative, his dismissal is carried out in the same manner as the dismissal of an ordinary employee.

First, the employee writes a letter of resignation, then the employer issues a dismissal order. After this, the part-time worker must work for another two weeks.

The date of dismissal cannot be a weekend or holiday, even if the part-time employee worked on that day. After all, since the last working day since former employee calculations must be made, and the accounting department does not work on weekends.

Dismissal of a part-time employee due to the hiring of a main employee

If a main employee has been found for the position in which a part-time worker works, the employer has every right to lay off the part-time employee. In this case, the part-time worker is sent written notice two weeks before dismissal.

Moreover, if a part-time worker quits his main job, the part-time job will be recognized as the main one. In such a situation, the employer will not be able to reduce the internal part-time job.

Payments to a part-time worker upon dismissal

In accordance with the law, the employer is obliged to make a full settlement with the former employee on the day of his dismissal. It is worth noting that if an external part-time worker is laid off due to staff reduction before the end of the working year in which he already received paid leave, no deduction is made for unused vacation days.

When a part-time employee is dismissed due to a reduction in the organization's workforce, the employer is obliged to pay him severance pay. The amount of this benefit is the average monthly earnings of a part-time worker. The law states that employers must pay severance pay to all employees laid off due to redundancy, regardless of whether they are part-time workers or key employees.

As you know, employers must warn employees about dismissal two months in advance. Early dismissal is possible only if the employee confirms his consent in writing. In such a situation, the employer will also have to pay compensation for unworked time.

Among them is the termination of an employment contract due to a reduction in the number of employees. In relation to part-time workers, the procedure is carried out in a general manner, but there are some nuances that need to be taken into account by managers faced with this situation. Read also the article ⇒

Types of part-time jobs

There are two types of part-time jobs that differ from each other:

Important! Part-time work and combination of positions should not be confused, when a citizen performs additional duties during his working hours.

Legislation (articles of the Labor Code of the Russian Federation)

There are several legislative acts regulating the issues of termination labor agreements with employees:

• Art. 261 of the Labor Code of the Russian Federation, which prohibits the dismissal of pregnant women and employees with dependent young children, except in cases where they commit a gross misconduct.
• Art. 179 of the Labor Code of the Russian Federation, denoting the circle of persons who have a preferential position in maintaining a job at the time of staff reduction.
• Art. 180 of the Labor Code of the Russian Federation, indicating that when laying off a director, he must offer employees other available vacancies. Employees with the highest qualifications, as well as pregnant women and citizens raising young children alone, will have priority rights here.
• Art. 137 of the Labor Code of the Russian Federation, which prohibits deductions for unworked vacation days upon dismissal due to staff reduction.

“High productivity and employee qualifications are fundamental criteria when selecting personnel to remain in an organization when staffing is reduced,” says Yu.P. Orlovsky, head of the Department of Labor Law High school economy.

Internal and external part-time workers are subject to general rules carrying out the reduction procedure. Citizens employed at their main place of work will not enjoy preferential rights in relation to part-time workers, because The norms of the Labor Code of the Russian Federation are the same for everyone.

How is staff reduction made?

The whole procedure looks like this step by step:

1. The commission decides on the need to reduce the number of employees. Most often this happens in order to save the organization’s budget.
2. The manager issues a corresponding order.
3. All employees are notified.
4. Employees are informed of all available vacancies that can be filled after layoffs.
5. Notifications are sent to the Employment Center and the Trade Union.
6. Employment contracts are terminated.

Deadlines

Each stage must be completed within a certain time frame:

If an employee refuses the offered vacancies in writing, the employer has every right to fire him. An exception is pregnant girls: termination of an employment contract with them under Art. 81 of the Labor Code of the Russian Federation is possible only upon liquidation of the enterprise.

How to notify employees?

Separate notices are drawn up for each employee using a single template. What they should contain:

• Issue date and number.
• Name of company.
• FULL NAME. and the position of the employee to whom it is addressed.
• When was it decided to make the reduction?
• Notification of liquidation of a position held by a subordinate.
• Estimated date of dismissal.
• List of available vacancies.
• Signature of acquaintance.
• Manager's signature.

Notification forms for the Job Center

There is no unified template, so this document can be drawn up in free form, but must contain the following information:

• Company name, full name leader.
• List of employees being laid off by name and their positions.
• Education and work experience of those being laid off.
• Salary amount.

How to familiarize an employee who is on vacation with the notice?

An employee's absence from work due to illness or vacation is not grounds for ignoring notice deadlines. If an employer is faced with such a situation, he should do the following:

• Deliver the document to the employee personally or ask him to appear at the organization himself.
• Send by registered mail.

Notice validity period

The document does not lose its relevance until 2 months have passed from the date of its preparation. The validity period ends if:

How to revoke a notice of layoff?

The legislation provides for the possibility of revoking a notification within two months after its preparation. To do this, it is necessary to issue an order to cancel orders to reduce staff. What information should be reflected in the document:

• Company name, date and number of the order.
• The essence is the cancellation of previously issued orders indicating the number of each of them.
• Who should familiarize employees with documents against signature?
• Manager's position and signature.

Common Mistakes

Mistake #1. It is not necessary to ask employees to sign notices and orders.

This must be done, otherwise if labor disputes the court will side with the workers.

Mistake #2. You can ignore the obligation to provide vacant positions to those dismissed due to reduction.

This cannot be done, because... if you refuse the offered position, written confirmation from the employee will be required and, if it is not provided, problems may arise with the Labor Safety Inspectorate.

Termination of an employment contract with an external part-time worker due to a reduction in the number or staff of the organization's employees is carried out in the general manner, with mandatory notification of the upcoming reduction, an offer of another job available to the employer, consideration of the issue of the preferential right to remain at work and payment of severance pay in the amount of the average monthly salary. earnings on the day of dismissal. At the same time, the average earnings maintained in accordance with Art. 178 of the Labor Code of the Russian Federation for the period of employment, there is no need to pay an external part-time worker.

In accordance with clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated at the initiative of the employer due to a reduction in the number or staff of the organization’s employees. At the same time, persons working part-time, by virtue of Part 2 of Art. 287 of the Labor Code of the Russian Federation provides all guarantees and compensation related to the termination of an employment contract on this basis, which are provided for by law.

In other words, all labor legislation requirements relating to the procedure for reducing the number (staff) of an organization’s employees also apply to employees working part-time. The procedure for dismissal due to reduction is common for everyone, established by the Labor Code of the Russian Federation without any exceptions, including in relation to part-time workers.

According to Art. 179 of the Labor Code of the Russian Federation, the preferential right to remain at work in the event of a reduction in numbers or staff is granted to employees who have higher qualifications and labor productivity. If these indicators are the same for workers, then those of them who have a family with two or more dependents, persons in whose family there are no other workers with independent earnings, and other categories listed in Part 2 of Art. 179 Labor Code of the Russian Federation. 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.

ABOUT upcoming dismissal In connection with the reduction in the number (staff) of the organization's employees, employees are warned by the employer personally and against signature at least two months before dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). Accordingly, notification of the part-time employee about the upcoming dismissal is mandatory. It also follows from this article that the warning must contain a specific date of dismissal. The legislation does not establish mandatory requirements for issuing a warning about the upcoming dismissal of an employee, so the employer develops the notification form independently.

According to Part 3 of Art. 81 of the Labor Code of the Russian Federation, dismissal due to staff reduction is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. The employer is obliged to offer the employee all vacant positions or work available to him in the given locality, both corresponding to the employee’s qualifications and lower positions or lower paid work that the employee can perform taking into account his state of health. The employer is obliged to offer vacancies in other localities if this is provided for in the collective agreement, agreements, employment contract.

Thus, the procedure for laying off a part-time employee is carried out in a general manner with mandatory compliance with labor legislation regulating the procedure for reducing the number or staff of an organization’s employees (Articles 81, 82, 179, 180 of the Labor Code of the Russian Federation). If the employer does not notify the part-time employee about the upcoming layoff, does not offer him another job available to the employer, and does not consider the issue of the priority right to keep the plaintiff at work, then the dismissal is illegal and the part-time employee must be reinstated in his previous job, that is, in his previously occupied position ( determination of the Investigative Committee for civil cases of the Moscow City Court dated June 24, 2011 No. 33-18240).

According to Part 4 of Art. 84.1, part 1 art. 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal.

Upon termination of an employment contract due to a reduction in the number or staff of the organization's employees, the dismissed employee in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid in the amount of average monthly earnings. As follows directly from Art. 178 of the Labor Code of the Russian Federation, severance pay is paid to all employees dismissed due to a reduction in numbers or staff, regardless of their status (main employee, internal or external part-time worker) and the fact of further employment. Thus, when an external part-time worker is dismissed due to a reduction in the number or staff, he is paid a severance pay in the amount of average monthly earnings. However, it should be taken into account that at the time of dismissal due to a reduction in the number or staff at the place of work on an external part-time basis, the employee is employed at the main place of work. Accordingly, the average earnings maintained in accordance with Art. 178 of the Labor Code of the Russian Federation for the period of employment, there is no need to pay an external part-time worker.

Termination of an employment contract before the expiration of a two-month notice period is possible in accordance with Part 3 of Art. 180 of the Labor Code of the Russian Federation only with the written consent of the employee. In this case, on the day of dismissal, the employer, in addition to severance pay, is obliged to pay the employee additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

In conclusion, we note that from the moment of warning until dismissal, the employee retains all labor rights. Any restrictions on the working conditions (wages, rest time, guarantees and compensation, etc.) of laid-off workers in comparison with other workers are unacceptable. Until the moment of dismissal, the laid off employee continues to fulfill his duties. labor functions in accordance with the employment contract, job description, wage is also paid in accordance with the position held and the employment contract (Article 15, Part 2, Article 57 of the Labor Code of the Russian Federation).