During this year, several laws were adopted that protect the labor rights of pensioners and citizens of pre-retirement age. In this regard, the requirements for employers have become more stringent, including criminal liability. In particular, the adopted Federal Law of October 3, 2018 No. 352-FZ introduced Art. 144.1, which provides for strict sanctions for employers for dismissing pre-retirement workers, as well as unjustified refusal to hire a person on the grounds that he has reached pre-retirement age. Violation may result in a fine of up to RUB 200,000. or in the amount of wages or other income of the convicted person for a period of up to 18 months or compulsory work for a period of up to 360 hours.
In addition, bill No. 269898-7 is currently being considered, which amends Art. 356-357 Labor Code of the Russian Federation. Officials want to expand the powers of the labor inspectorate in the field of protecting the labor rights of workers, that is, to give this body the right to go to court on behalf of the employee and represent his interests in court. Accordingly, if the law is adopted, then retired workers can also take advantage of new opportunities to protect their rights.
Another innovation: Rostrud has involved labor inspectorates in organizing quarterly monitoring of information about employers and the number of pre-retirement workers (Rostrud Letter No. 858-PR dated July 25, 2018). The form must be submitted starting October 1, 2021, by the 15th day of the month following the reporting month. We wrote in more detail about legislative innovations and initiatives earlier.
It is obvious that the state is making attempts to legislatively protect older employees. Realizing this, the business that works with this category of employees, in response to the new laws, put forward demands on its part: it asked for preferences - a reduction in contributions, the introduction of tax benefits in cases where the employer invests money in the retraining and advanced training of pre-retirees, etc. .d. However, their appeal was not satisfied.
Therefore, taking into account the new requirements starting in 2021, employers should be especially careful in relation to retired and pre-retired employees and try not to violate labor legislation.
What can be the dismissal of a pensioner?
First of all, it should be noted that reaching retirement age is not grounds for dismissal. An employee who has applied for a pension can either continue to work and quit when he wants, or he can want to quit immediately in connection with his retirement. Depending on the circumstances, different dismissal scenarios apply.
- The employee has already retired, continues to work for the company, but at some point decides to quit
In this case, the basis for dismissal is the employee’s own desire. This is the general basis indicated in Art. 77 of the Labor Code of the Russian Federation, therefore, the employee must notify the employer in writing two weeks in advance of his intention to leave the company (Part 1 of Article 80 of the Labor Code of the Russian Federation). And the employee must work for these two weeks in the company.
In this case, an entry is made in the work book: “Dismissed at his own request, paragraph 3 of part one of Article 77 of the Labor Code of the Russian Federation.”
- An employee resigns due to retirement
Termination of labor relations between an employer and an employee in connection with the latter’s retirement has a feature that is reflected in Part 3 of Art. 77 Labor Code of the Russian Federation. It implies termination of the employment contract within the period specified in the employee’s application. That is, the employer does not have the right to require the employee to work two weeks.
In this case, the entry in the work book will be as follows: “Dismissed at his own request due to retirement, paragraph 3 of part one of Article 77 of the Labor Code of the Russian Federation.”
How to properly quit a pensioner's job
The dismissal of a pensioner follows the same procedure as the dismissal of a regular employee, but with certain nuances. They are associated with such a concept as “retirement”. Employers' interpretation of this concept is not always correct, and they dismiss a pensioner in violation of labor laws.
If a pensioner goes to court, he can demand reinstatement in his job and payment of compensation for moral damage.
A working pensioner dismissed in accordance with the law without his consent at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) is provided by law with all the general guarantees provided to any other categories of employees.
- Thus, when staffing is reduced, a pensioner is provided with severance pay equal to the average monthly salary.
- At the same time, for the period of subsequent employment, this pensioner must maintain an average monthly salary for two months.
Leaving a job voluntarily
An employee's retirement due to reaching retirement age is not considered dismissal. According to the legislation, this is the full right of a citizen to establish a pension. Dismissal of a pensioner at his request is the right to receive a pension.
The labor legislation of the Russian Federation does not establish a time period between the voluntary dismissal of a working pensioner and the receipt of the right to a pension. Such an employee can submit an application immediately as soon as he receives the right to retire, or some time later . Moreover, the dismissal of an employee due to retirement must be made from the date specified in the application.
The employer does not have the legal right to set deadlines for work or refuse dismissal.
Application for resignation upon retirement
In accordance with the procedure established in the Labor Code of the Russian Federation, a working pensioner, on his own initiative, writes a letter of resignation. In it he states :
- position and full name of the employer;
- your position and full name;
- a request to dismiss, which indicates the date of dismissal.
- puts the date of submission of this application and his signature.
Sample letter of resignation due to retirement
To avoid conflict situations, it is better for the pensioner to take a photocopy of the application , and ask the person accepting the application for registration to indicate the number and date of the incoming document on the second copy.
2 weeks work upon dismissal
Dismissal due to retirement is a special case of dismissal at the request of the employee. Its peculiarity is that the pensioner has the opportunity to resign on the day he wants, without notifying the employer 2 weeks in advance, as in standard dismissal situations.
Dismissal of an employee of retirement age at his own request without working out is a benefit that is guaranteed to him by the Labor Code of the Russian Federation. Therefore, in the application you need to write the reason for which the dismissal will occur. In accordance with Art. 80 of the Labor Code of the Russian Federation, an employee can resign at will without working the required 2 weeks due to circumstances that do not allow him to continue working. Among these reasons is the employee’s retirement.
The procedure for dismissing an employee due to retirement
If an employee who is about to retire decides to quit, then the algorithm of his actions will be as follows.
1. The employee writes a letter of resignation of his own free will in any form.
It is important to include the following information in this statement:
- FULL NAME;
- job title;
- grounds for dismissal (“at one’s own request”);
- reason for dismissal (“due to retirement”);
- date of dismissal.
How many times can an employee resign due to retirement?
On the official website, Rostrud expresses a clear position on this issue. If an employee once used the wording “due to retirement,” then he does not have the right to quit a second time for the same reason. It does not matter whether he worked before his dismissal “due to retirement” for the same employer or for another.
Thus, if a retired employee already has a record of dismissal in connection with retirement in his work book, then he can subsequently resign only with the wording “of his own free will.” At the same time, he must notify the employer of his plans two weeks in advance (unless he has another valid reason not related to retirement) and, accordingly, work out this period.
2. The employer prepares the following package of documents:
- issues an order to terminate the employment contract with the employee
When placing an order, several nuances should be taken into account. In the line “grounds for termination (termination) of the employment contract (dismissal)” you must indicate the basis for dismissal in accordance with clause 3, part 1, art. 77 of the Labor Code of the Russian Federation and the reason for dismissal (“in connection with retirement”).
In the line “document number” and “date of preparation” the details of the employee’s application are indicated. Next, the employee gets acquainted with the order against signature.
If an employee asks to issue a copy of the order, the employer is obliged to do this by duly certifying the document (Article 84.1 of the Labor Code of the Russian Federation). If the dismissal order cannot be brought to the attention of the employee or the employee refuses to sign it, then a corresponding entry is made on the document.
- makes an entry in the work book
The work book indicates the basis and reason for dismissal - they must correspond to the text of the order.
3. The employer makes the necessary payments to the employee.
Art. 140 of the Labor Code of the Russian Federation obliges the employer, upon termination of the employment contract, to pay the employee all amounts due on the day of dismissal. If the person did not work on that day, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
Upon dismissal of one's own free will in connection with retirement, the employee is paid a salary, compensation for unused vacation and other amounts that may be provided for by a collective agreement or industry agreements.
If the employer does not pay the amount on time due to the fact that he did not formalize the dismissal on the day specified in the application, that is, without working off, then he will have to pay the amount with interest, according to Art. 236 Labor Code of the Russian Federation.
An employee's right to a pension upon dismissal
Retirement involves ceasing to work and receiving monthly payments from the state. The procedure for completing service in the internal affairs department is regulated by Chapter 12 of the Federal Law of November 30, 2011 No. 342-FZ.
It states that one of the grounds for termination of a contract is the dismissal of a citizen from service. Dismissal means not only leaving service on one’s own initiative or due to disciplinary offenses and other reasons, but also the right to a pension for length of service.
You can leave service in connection with the assignment of a pension only if you meet the established requirements, these include:
- a certain number of years of work in internal affairs bodies, called length of service (at least 20 years);
- reaching the age limit for serving in the Ministry of Internal Affairs (45 years);
- total experience of 25 years, of which at least half (12.5) - in the Ministry of Internal Affairs, for the right to retire on a mixed basis.
Pension benefits can be provided to an employee not only in connection with reaching the appropriate age. If he has health problems that do not allow him to continue serving, he has the right to initiate the process of establishing this fact and retire.
For example, if a citizen is disabled or injured or ill in the service, he does not have to have the required number of years of service, but the status must be officially confirmed. In this case, the initiative is only in the hands of an employee of the Ministry of Internal Affairs. A representative of internal affairs bodies must meet the retirement criteria established for civil servants.
As a result of the 2021 pension reform, the length of service required to enter a well-deserved retirement for long service is planned to increase by 5 years. Future retirees will have to serve in the authorities for at least 25 years.
Dismissal of a pensioner due to staff reduction
The dismissal of a pensioner due to staff reduction occurs on a general basis. At the same time, according to Art. 179 of the Labor Code of the Russian Federation, specialists with higher productivity and qualifications have a preferential right to remain at work.
The employer is obliged to warn the employee about the upcoming layoff two months in advance - in writing. It must indicate that the employee is leaving due to staff reduction after the specified period, from the date of receipt of the notice, as well as information about the absence of vacancies, and therefore he cannot be transferred to another job. The employee gets acquainted with this document against signature.
The employer may offer the employee to terminate the employment contract before the expiration of the notice period if it is ready to pay him additional compensation. The amount of compensation is the average salary, which is calculated in proportion to the time remaining before the expiration of the notice of dismissal.
When reducing staff, the employer is obliged to offer the employee another job available to him in the given area - a vacant position or job that corresponds to his qualifications, as well as a vacant lower position or job. The employee becomes familiar with these proposals against signature. He can take time to think about the employer's offer - until the notice period for dismissal expires.
The employer also issues an order to reduce the number of employees in any form. The document must include the following information:
- the basis for the reduction (owner’s decision, reorganization or other);
- positions, how many staff units are subject to reduction;
- date of introduction of changes (taking into account the notice period for employees about dismissal).
If a retired employee was dismissed early, having given his consent, then the order reflects the details of the written consent (it can be recorded directly on the order). Rostrud advises attaching the original written consent of the employee to early dismissal, and attaching a certified copy to your personal file. The employee must be familiarized with the order against signature.
An entry is made in the work book about the termination of the employment contract due to staff reduction (grounds of clause 2 of Article 81 of the Labor Code of the Russian Federation), the signature and seal of the employer and the signature of the dismissed employee are affixed.
On the day of dismissal, the employee receives from the employer:
- work book;
- all payments. If the employee did not work on that day, then the amounts are paid no later than the day following after the dismissed employee submits a request for payment;
- a certificate of the amount of earnings for the two calendar years preceding the year of termination of work;
- certified copies of work-related documents (if the employee requested them in writing).
How much severance pay is an employer required to pay when laying off a retired employee?
The employer is obliged to pay one severance pay and maintain the employee’s average earnings for the period of searching for a new job (Article 178 of the Labor Code of the Russian Federation).
Severance pay in case of staff reduction is paid in the amount of average monthly earnings. If within two months after dismissal a person does not get another job, he is paid another average monthly salary. To receive it, a person writes an application and addresses it to the employer, and also provides him with his work book.
In some cases, the average monthly salary is maintained for the third month from the date of dismissal. But this depends on the decision of the employment service - provided that the person applied to this organization within two weeks after dismissal and they could not help him with employment.
Article 81 of the Labor Code of the Russian Federation
Information about additional grounds for dismissing an employee is recorded in the employment contract. The fact of the occurrence (identification) of circumstances allowing the dismissal of an employee for one of the additional grounds must be documented.
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This takes into account the circumstances of the commission of the immoral offense, the degree of its severity, as well as whether the employee has previously committed similar offenses. As a rule, when an employer makes a decision on dismissal, it also takes into account how well the employee has proven himself in the eyes of his colleagues and wards.
How are payments calculated?
When calculating pension accruals, the following factors are taken into account:
- Salary amount by position.
- Length of service in the Ministry of Internal Affairs, or work experience (mixed).
- Longevity bonus.
The calculation is as follows:
- If the service period is more than twenty years, the long-service pension is paid in the amount of half the employee’s monthly salary, plus 3% for each additional year over twenty years.
- If the length of service exceeds twenty-five years, then 1% is accrued for each additional year (the initial amount is also half of the official salary).
But of course there are limitations.
The pension must be no less than half of the monthly salary.
And the maximum limit for long-service pension is 85% of the monthly official salary. Upon retirement, employees may receive additional benefits. For example, if an employee was not paid the required bonus, it is paid.
Its size depends on the length of service. If the calendar length of service is more than twenty years, then a bonus is paid in the amount of seven salaries. If less than twenty years - then in the amount of two monthly salaries. For honorary titles and state awards, another monthly salary is added to the amount.
You can find out what the minimum and maximum pension amounts are for employees of the Ministry of Internal Affairs here, and in this article we talked about how to calculate such pension payments.
