Reduction of external part-time employees due to staff reduction. Part-time job reduction

In practice, it is not at all easy to comply with the reduction procedure, especially when the legal requirements are not formulated precisely enough. Meanwhile, dismissal may be considered illegal if the employer allows the slightest deviation from the established procedure...
The issue of laying off part-time workers is quite problematic.
For example, a company employs part-time workers under an open-ended employment contract. Is an employer obligated to offer positions occupied by part-time employees to employees who are being laid off?
The employer does not have such an obligation since the position for which the part-time employment contract was concluded is not vacant.

The Labor Code of the Russian Federation does not define the concept of a vacant position. Judicial practice recognizes as such a position for which no employment contract has been concluded. A position occupied by a part-time employee cannot be considered vacant.

At the same time, the law allows you to terminate an employment contract concluded for an indefinite period with a part-time worker if you hire an employee for whom this work will be the main one. Therefore, the employer has the right, but not the obligation, to offer part-time positions to laid-off employees. Moreover, even if the employee being laid off applied for a part-time job as his main one.

What positions can be offered to a part-time worker?

The employer must offer the part-time worker vacant positions that are suitable for the employee’s qualifications, but are not part-time work. During the entire period of redundancy measures, the employer is obliged to offer the laid-off employee vacant and not contraindicated for health reasons:
– positions or jobs corresponding to the employee’s qualifications;
– lower positions or lower paid jobs.

Part-time workers have the right to guarantees and compensation provided for redundancy in full. Therefore, the employer must offer them in writing and against signature all the vacancies available in the local area, even if the vacancies are not part-time work. Otherwise, the employee's rights will be violated.

Job offer

The moment when it is necessary to send notice of the availability of vacancies due to staff reduction is not established by law. In practice, an employee is offered another available job at least three times during the period of notice of dismissal: upon notification of layoffs, a month after that and before the day of dismissal. The notice must be drawn up in any written form and delivered personally to the employee against signature.

For part-time workers, there are restrictions on working hours, since they have a main place of work. In this regard, the notification must indicate not only the name of the proposed positions, the salary for each of them, but also the mode and nature of the work.

Payment of severance pay to a part-time worker being laid off

Dismissal of a part-time worker when the main position is reduced
The employee holds the main position on an internal part-time basis. The employer is planning to eliminate this position. How to be in this case?

Firstly, it is necessary to ensure that the established procedure for dismissal due to staff reduction from this position is followed.
Secondly, with the consent of the employee, formalize his transition from part-time work to his main job. To do this, you need to dismiss the employee from his part-time job (by agreement of the parties or at his own request) and only after that hire him to his main job.

Many lawyers believe that part-time work can become the main way to conclude an additional agreement to change the terms of the employment contract. However, this option seems risky. The procedure for making an entry in the work book about a transfer from a part-time job to the main job is not regulated by the rules and risks violations.
A controversial entry in the work book can lead to disagreements with the Federal Social Insurance Fund of Russia. The entries taken into account when calculating the insurance period must comply with the labor legislation in force on the day they were entered into the work book (clause 24 of the Rules approved by order of the Ministry of Health and Social Development of Russia dated February 6, 2007 No. 91).

Notification of the employment service about the layoff of a part-time worker

The employer is obliged to notify the employment service in accordance with the generally established procedure of the upcoming dismissal of part-time workers due to staff reduction. All labor legislation requirements regarding staff reduction procedures in relation to part-time workers are fully complied with.
No later than two months in advance, the employer must send information about the employees being laid off in writing to the employment service authorities. If the reduction may lead to mass layoffs, then notification must be sent at least three months before the start of the relevant activities. Otherwise, the organization may be fined from 3,000 to 5,000 rubles.

A part-time employee is a part-time employee who regularly performs additional duties in his free time from his main job. Part-time work can be internal (both the main and additional jobs are in the same enterprise) or external (the main job is in one enterprise, and the additional one is in another). According to the law, citizens can have as much additional work as they want (with a reasonable time limit, of course). And most importantly, part-time work must be just as formalized as the main job. This article will talk about how to fire a part-time employee, how to do it correctly and what nuances need to be taken into account.

Hiring and dismissing a part-time worker

The most important thing that an employer needs to remember is that a part-time worker is the same employee as everyone else, so his hiring and dismissal occur on a general basis. Registration of a part-time worker for a workplace is carried out in several stages:

a corresponding statement is written;
the parties sign an employment contract;
on the basis of an employment contract, an order or instruction is issued for the enterprise on hiring part-time work.

The external part-time worker must also provide the HR department (or the head of the enterprise, if we are talking about a small organization) with a passport and, if necessary, educational documents. The internal part-time worker already has the necessary package at the enterprise. No extracts or copies from the work book are required when applying for a job.

Of all of the above, special attention should be paid to the employment contract, since it is the one that influences dismissal from part-time work. Otherwise, the procedure for dismissing a part-time worker (internal or external) and main employees is the same.

Employment contract

A part-time employment contract is drawn up in exactly the same way as a regular one. He can be:

urgent - that is, to act until a specific date or until the end/beginning of certain events (for example, until an employee returns to work or repair work is completed in full);
unlimited – that is, without specifying deadlines (valid continuously until the employee decides to terminate the employment relationship with the employer).

It is the term of the employment contract that affects the dismissal of a part-time worker. Let's look at these questions in more detail.

Grounds for dismissal

The dismissal of a part-time worker (internal or external), as well as of main employees, occurs on a general basis. According to the law, employees who are on sick leave, vacation, maternity leave, or child care cannot be fired. The date on which an employee is dismissed cannot be earlier than the date of his return from vacation or the end of his sick leave.

Fixed-term contract

If a fixed-term employment contract has been signed, the employee can be fired only upon expiration of its term and not earlier (we are not currently considering cases where there is a violation of labor discipline or complete liquidation of the enterprise).

Permanent contract

If an open-ended employment contract is signed, the employer has the right to dismiss a part-time worker if a main employee is found in his place. In this case, notice of dismissal is sent in writing no later than two weeks before the expected date. In this case, the employee may have time to resign from his main place of employment, then the part-time activity will be considered the main one - even with part-time work - and the dismissal of the part-time worker at the initiative of the employer in connection with the hiring of the main employee can no longer be carried out.

Dismissal procedure

Since a part-time worker is a full-fledged employee like everyone else, he can be fired:

at your own request;
by agreement of the parties;
at the initiative of the employer (to reduce or change staff).

In the first two cases, everything is quite simple: an application for part-time dismissal is written, an order or order for the enterprise is drawn up, and, if necessary, a corresponding entry is made in the work book - in the event that there was a note about being hired for a part-time job. Such records are kept at the main place of work on the basis of relevant documents.

At your own request

Dismissal of a part-time employee at his own request occurs in the same way as the main employee: a statement is written, an order for the enterprise is prepared, the employee works the required two weeks. Working off a part-time job is mandatory, unless, of course, the employee has agreed with the employer to shorten the working period or cancel it altogether.

The date of dismissal cannot fall on a holiday or weekend, even if the person worked on that day - after all, the employer must make the final payment and draw up the necessary documents, and the accounting department and the human resources department are unlikely to work on a day off.

Retrenchment of a part-time employee

Reduction of a part-time worker (external or internal) also occurs on a general basis. Two months before the proposed layoff, the employee is notified of this, and an order is issued to make changes to the structure of the enterprise and the staffing table (on staff reduction). During this time, the employer is obliged to offer other vacancies. At the same time, these job options may pay less well, be less interesting and require lower qualifications - often employers specifically take such measures if for some reason they need a reduction.

If an employee refuses the offered vacancies, he is dismissed due to staff reduction. In this case, severance pay must be paid in the amount of the average monthly salary, and these payments are retained by the employee for a maximum of two months, if during this period he is unable to find a job.

When dismissing a part-time worker, you must also take into account that it is impossible to lay off pregnant women, married women who are the only breadwinners, trade union workers (if the part-time job is related to trade union activities), as well as other categories of workers listed in the legislation.

Order to dismiss a part-time worker

When a part-time worker is dismissed, an order is issued for the enterprise. An order for part-time dismissal is drawn up in form T8-a. This document must contain:

last name, first name and patronymic of the employee;
job title;
Personnel Number;
date of dismissal;
grounds for dismissal and the corresponding article of the Labor Code;
information about payment of compensation or deductions;
signature of the head of the enterprise;
signature of the part-time worker indicating that he has read the order.

An order for the dismissal of an internal part-time worker is no different from an order for the dismissal of an external one - these features are not recorded in the document.

Vacation compensation

Before dismissing an internal part-time employee, it is necessary to calculate compensation for unused vacation days or deductions for overused vacation days. Since the part-time worker’s vacation must coincide with his vacation at his main place of work, he could well take vacation days from his part-time job in advance, so when he is fired, the appropriate amount must be withheld. An employee may not take leave from a part-time job during his main leave - in this case, unused days are compensated.

The organization is reducing its workforce, and the positions in which part-time workers are being reduced are being reduced. Should the employer pay them severance pay? Or are such employees not entitled to severance pay? Article 178 of the Labor Code of the Russian Federation establishes that upon termination of an employment contract due to a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation), the dismissed employee is paid severance pay in the amount of average monthly earnings, and his average monthly earnings are also retained. for the period of employment, but not more than two months from the date of dismissal (including severance pay).

Severance pay when part-time workers are laid off

This document is filled out randomly. The procedure ends with the issuance of an order to dismiss the employee and making a certain entry in the employee’s work book. It must indicate the exact article of the Labor Code of the Russian Federation. Payments When part-time workers are laid off due to staff reduction, they are entitled to the following payments:

severance pay;
payment of funds for the unused part of the vacation.

Payment is made to the employee on the last working day.

Deduction for unworked vacation days is not carried out (Part 2 of Article 137 of the Labor Code of the Russian Federation). The worker is reimbursed severance pay in the amount of monthly income.

The fact that the employee is an external part-time worker does not play any role. At the same time, the employee himself remains employed at his main place of business, therefore he will not be able to receive payments for the period of employment.

Severance pay for part-time worker

What financial payments such an employee needs to pay depends on whether he was also fired by the employer for whom he worked at his main place. If, after being laid off as an external part-time worker, the employee remains employed at his main job, then he is guaranteed only severance pay.

If it turns out that at the same time he loses his main job with another employer, then if he is laid off as an external part-time worker, the employee retains his average earnings for the period of employment. Notification of layoffs Before starting the procedure for laying off part-time workers, the employer is obliged to provide information about the layoff to the employment service (clause
2 tbsp. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1). Subscribe to our channel in Yandex.

Reduction of external and internal part-time workers

Important

Upon dismissal, part-time workers are paid severance pay. Considering that the guarantees and compensation provided for by labor legislation, other regulations, collective agreements, agreements, local regulations are provided to persons working part-time in full, then the norms of the Labor Code of the Russian Federation in relation to dismissals also apply to part-time workers. It follows from this that when part-time workers are dismissed due to a reduction in the staff or number of employees of the organization, they are paid severance pay, provided for in Article 178 of the Labor Code of the Russian Federation, in the amount of average monthly earnings.

It should be borne in mind that part-time workers who are subject to dismissal on these grounds do not retain their average monthly earnings for the period of employment.

The peculiarity is that they have a single employer at their main and additional places of work. It is necessary to distinguish part-time work from combining positions, when an employee performs additional duties during working hours.
For internal part-time workers, the same rules apply as for other workers when the number of employees is reduced.

Payments upon dismissal of a part-time worker

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 dismissal, the laid-off employee continues to perform his labor functions in accordance with the employment contract, job description, wages are also paid in accordance with the position held and the employment contract (Article 15, part two of Article 57 of the Labor Code of the Russian Federation).

Dismissal of a part-time employee due to staff reduction

At the same time, the law limited the rights of part-time workers to receive certain guarantees and compensation. Thus, they are not provided with guarantees and compensation related to training and work in the Far North and equivalent areas (Part 1 of Article 287 of the Labor Code of the Russian Federation). EXAMPLE S. filed a lawsuit against the federal government institution “Financial Support Directorate of the Ministry of Defense of the Russian Federation for the Murmansk Region” (hereinafter referred to as the Directorate) for the recovery of wages. To substantiate the claims, the plaintiff indicated that he worked in the Department as an engineer at his main place of work and as an internal part-time employee as a card accounting engineer.

In 2011, S. was fired due to a reduction in the organization's workforce. In the lawsuit, S. appealed the actions of the defendant, who paid him the average earnings for the fourth and fifth months only for his main job (position).

The average salary for a laid-off and unemployed employee remains the same:

no more than 2 months from the day he was fired;
within 3 months from the date of layoff, if the employment service confirmed that the dismissed person contacted them no later than two weeks after the layoff, but was never employed.

Labor legislation did not exclude anyone from receiving these guarantees. Therefore, they are also relied upon by part-time workers when they are made redundant.

The dismissed part-time worker retains his average earnings if he remains unemployed. This can happen if a part-time worker loses his main job. If he remains employed at his main place, then after being laid off as a part-time worker, he will not receive an average salary.

It's fast and free! Table of contents:

Part-time job reduction
External employee dismissal process
Documenting
What should they pay?
Dismissal of an internal employee
Documentation
Payments
Is an employer obligated to offer vacant positions?

Retrenchment of a part-time worker An employer, even if it wishes, will not be able to organize the dismissal of a part-time worker due to staff reduction if he is on vacation or sick leave. If, when hiring such an employee, a fixed-term employment contract was concluded, then dismissal will not be possible until it ceases to be valid.

The law has not adopted any strict standard for drawing up such a notice and therefore the employer can draw it up at his own discretion.

Is a part-time worker entitled to severance pay when staffing is reduced?

If the dismissed person is employed in another place, then he is automatically released from this right. Payments for the reduction of an internal part-time worker must be made! Is an employer obligated to offer vacant positions? In addition to paying severance pay in the event of a part-time layoff, the employer has other responsibilities. As mentioned above, the list of vacancies from which a part-time worker can choose instead of being fired must be clearly stated in the notice that is provided to the dismissed employee for signature.

The Labor Code obliges any employer to do this. Otherwise, the notice will be considered invalid and the dismissal will accordingly be illegal.

In this case, the dismissed employee can go to court based on labor legislation, and will have a good chance of winning the case.
The conclusion of employment contracts for part-time work is allowed with an unlimited number of employers, unless otherwise provided by federal law (Part 2 of Article 282 of the Labor Code of the Russian Federation). Therefore, in this case, the employer can offer released part-time workers only those vacant positions that it plans to fill on a part-time basis. If full-time employment is expected, then only those employees for whom this work will be the main one can and should be invited to such positions. If the employer does not have vacancies to fill on a part-time basis, the part-time worker being laid off should be notified about this in writing (example). Guarantee 3. Cash payments in connection with layoffs. According to Part 1 of Art. 178 of the Labor Code of the Russian Federation upon termination of an employment contract due to the liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation) or reduction in the number or staff of employees (clause

If an employee refuses to voluntarily sign the act, then it can be sent by mail with acknowledgment of receipt. The document specifies the planned date of dismissal, reasons for reduction and information about vacant positions.

Example of a notification: A job offer may be in the form of a letter. It specifies positions and salaries. After the expiration of the two-month period, the employer can issue an order to dismiss employees. The corresponding article of the Labor Code of the Russian Federation is prescribed as the reason for termination of the agreement. The worker must be familiarized with the document against signature. Payments When laying off a part-time worker, the following are paid:

severance pay;
the amount of wages for the time worked;
payment for unused vacations.

Thus, he receives the same amounts as other employees.

16.06.2017, 13:07

It was decided to reduce the position held by the external part-time employee. If everything is clear with the payment of severance pay when laying off regular employees, then the HR specialist has not yet encountered the layoff of a part-time worker. Is it necessary to pay severance pay to a part-time worker when being laid off? Our experts will tell you the correct answer to this question.

You can also lay off a part-time worker

Reduction implies a reduction in the number of employees or the abolition of a position with the simultaneous dismissal of the employee who occupies it.

For your information
A reduction in the number of employees means a decrease in the number of staff members occupying a position of the same name while maintaining it. While staff reduction is the abolition of an employee’s position. After staff reduction, there will no longer be such a position in the organization (Part 1 of Article 81 of the Labor Code of the Russian Federation).

No one is immune from layoffs, so this procedure may also affect part-time workers. The main thing is that the reduction procedure established by current legislation is followed (Articles 179, 180 of the Labor Code of the Russian Federation).

Failure to comply with the layoff procedure may result in the employee being reinstated. In addition, the court will demand payment from the organization for his forced absence (Article 394 of the Labor Code of the Russian Federation).

A part-time worker is also a person

Persons dismissed due to staff or headcount reduction are entitled, in particular, to severance pay. There are no exceptions to this rule in relation to part-time workers under current legislation (Part 1, Article 178, Part 2, Article 287 of the Labor Code of the Russian Federation). Therefore, it is necessary to calculate and pay severance pay to a part-time worker in the general manner. The fact that such an employee (external or internal part-time worker) has another place of work does not matter.

Severance pay for a part-time worker in case of staff reduction or liquidation of an enterprise must be calculated using the following formula:

As for the payment to part-time workers of the average monthly salary for the period of employment, such payment to part-time workers is not due. This is explained by the fact that the part-time worker did not lose his main job (Part 1 of Article 282 of the Labor Code of the Russian Federation).

I work as an external part-time worker and have a main job. My part-time position is due to be reduced in two months. Handing me a notice of layoff, the HR specialist said that if I was laid off, I was not entitled to any payments, since I had a permanent job. Why is the part-time worker not entitled to severance pay when the staff is reduced? Am I not the same worker as others?

In the amount of average monthly earnings in case of reduction in number or staff paid on the same basis as other employees. It is possible that the HR specialist meant to maintain the average monthly salary for the period of employment. But this question also does not have a clear answer and depends on the specific situation, so we will return to it later.

In accordance with Part 2 of Art. 287 of the Labor Code of the Russian Federation, persons working part-time are subject to all guarantees and compensations provided for by the Labor Code of the Russian Federation, the collective agreement, and other regulatory legal acts containing labor legislation. Only guarantees and compensations related to work in the Far North and equivalent areas, as well as those related to obtaining education, do not apply. These guarantees and compensations are provided only at the main place of work, as evidenced by Part 1 of Art. 287 of the Labor Code of the Russian Federation.

Part 1 art. 178 of the Labor Code of the Russian Federation establishes the amount of severance pay that is paid to an employee in the event of dismissal due to the liquidation of the organization, reduction of staff or headcount of the organization. The article in question establishes exactly the amount of severance pay; no restrictions are established for the payment.

Severance pay to a part-time worker is paid in other cases (Part 3 of Article 178 of the Labor Code of the Russian Federation):

the employee’s refusal to transfer to another job required in accordance with a medical certificate 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;
conscription of an employee into military service or sending him to an alternative civilian service that replaces it;
reinstatement of an employee who previously performed this work;
the employee’s refusal to be transferred to work in another location together with the employer;
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;
the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties.

So, severance pay to a part-time worker is paid in cases established by labor legislation, on a general basis. And it is no exception.

Let's return to maintaining the employee's average monthly earnings for the period of employment. It is impossible to say unequivocally that it is not retained by the part-time worker. You need to make sure that the part-time worker has a job. It is possible that he quit his main job and will become unemployed at the time of the layoff; therefore, he should be provided with guarantees for the period of employment.