The procedure for dismissing a pensioner at his own request

Can a pensioner be fired due to redundancy?

Information

Until 1992, a labor code was in force, which allowed the enterprise administration to dismiss an employee after his age approached the retirement limit. Based on the new norms regulating the relationship between the employer and employees, the citizen retains the right to work.

Pensioners, like other employees, may be laid off. The dismissal procedure takes place on a general basis. All actions of the personnel department comply with the provisions of legal norms.

Measures to reduce the number of staff units are most often triggered by the following events:

• modernization of production;
• change in the scope of activity;
• job reductions in order to optimize labor resources;
• reduction in the volume of products produced at the enterprise.

Important

Pensioners who have dependent minor children are not subject to dismissal.

The ban also applies to:

• guardians;
• disabled people of WWII and combat.

Privileges and guarantees

When carrying out the procedure for downsizing or liquidating a company, persons receiving state subsidies are entitled to privileges. The employer must provide pensioners with the following guarantees:

• do not discriminate against individuals based on age, provide equal rights to work for older citizens compared to younger employees;
• take into account the qualifications, experience, knowledge and skills, high labor productivity of a pensioner when determining the list of employees subject to personnel reduction;
• provide additional unpaid leave out of turn for up to 2 weeks to a person receiving old-age benefits, upon his request;
• pay all subsidies established by the state when the number of workers in the company is reduced;
• do not force a pensioner to work for the required 2 weeks if the citizen decides to resign of his own free will.

Preemptive right to remain on staff of the enterprise

According to the provisions of the Labor Code of the Russian Federation, an employee receives an advantage when remaining in his position during the procedure for optimizing production at the enterprise, if he is highly qualified and performs duties in accordance with the provisions of the employment agreement. If a person of retirement age is actively working in production and his work is highly productive, then the company management must take these factors into account when compiling a list of employees to be laid off.

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Which pensioners are prohibited by law from being laid off?

People belonging to socially unprotected categories of citizens who have served the Russian Federation and the enterprise have the right to remain in their previous position while minimizing the size of the company for objective reasons. These include the following Russians receiving a pension:

• those who took part in battles on the battlefields of the Great Patriotic War (WWII);
• those who received injuries in the Second World War that led to disability;
• having disabilities due to participation in other battles in hot spots;
• injured during work, but able to perform job functions in accordance with the provisions of the employment agreement;
• providing for minor dependents;
• falling under the definition of a privileged group that is not subject to reduction, in accordance with the provisions of the collective agreement;
• who are guardians of minor children, provided that they are the only employed family members.

Dismissal procedure

Due to the fact that a working pensioner is an ordinary staff member, the dismissal procedure is carried out in accordance with the general requirements of the law.

The actions of the administration represent a certain algorithm, following which many mistakes can be avoided.

1. The director of the company, together with the heads of structural divisions, holds a meeting at which an official decision is made to change the staffing table.
2. Based on the decision made, the commission members issue an order. The text indicates the need to reduce certain staffing positions, the names of positions, the names of employees and the date of execution of the order.
   Information

   The list of those affected by reduction is compiled by the heads of departments, but is approved by all members of the commission, including the director.

3. According to the legal framework, employees included in the list are given a written notice of the administration’s intentions 2 months before the date of execution of the order.
4. If there are vacancies at the enterprise that correspond to the qualifications of the employee who was laid off, he is offered a new position. In this regard, retirees have priority, because their experience and professional level are of great value to the company.
   Attention

   One of the important conditions for the possibility of transfer is good health.

5. Simultaneously with notifying the employee of the upcoming layoff, the manager notifies the trade union organization of the upcoming changes, as well as the employment service.
6. All employees included in the layoff list are given a written notice against their signature.
7. In order for qualified employees, such as retirees, to continue to use their accumulated experience, the administration offers an alternative vacancy. The pensioner confirms his disagreement to renew the employment agreement with his signature in the act, which is drawn up in the event of refusal to accept the administration’s offer.
   Attention

   He retains the right to resign early while maintaining benefits for the remaining period.

8. Two months after receiving the written notice, a dismissal order is issued. The wording indicates the reason - reduction.
9. The dismissed employee is given documents (including a work book) and payment funds. The process of transferring papers and funds is recorded in personnel journals and accounting statements.

Payments and benefits

The date indicated in the notice of reduction is the last working day. It is then that the employee is given documents and payment funds for the period worked. The law also provides for the payment of benefits in the amount of average monthly earnings, and this amount is retained by the pensioner for two months.

The benefit is, in essence, material support for the fired person during the period of searching for a new job. If this appears in the first month after dismissal, then the employer has the right to refuse the next tranche.

The total amount issued includes:

• wages;
• severance pay;
• compensation for unclaimed leave.

Based on the internal regulations of the organization, a reduced employee may be awarded an additional amount for length of service or other achievements.

Attention

Payments to a pensioner with whom the employment agreement is terminated early are carried out in accordance with legal acts, namely Art. 178, 180 Labor Code of the Russian Federation.

Within 2 weeks, a redundant employee can register with the employment service, then it becomes possible to receive severance pay for the third month.

What mistakes can management make when laying off a pensioner?

Some personnel officers and accountants believe that a pensioner belongs to a “special” category of workers, so there is no need to apply certain rules to him. For example:

• Payment of severance pay only for the first month after dismissal. Management is obliged to pay benefits for the first 2, and in some cases, 3 months after dismissal. It doesn’t matter whether the “downsized” pensioner is going to look for a new job or is going on a well-deserved retirement. And if he registers with the Central Employment Service within 2 weeks after the layoff, he will have to pay money for the 3rd month.
• Notification of the pensioner on the date when he will be on annual leave according to the schedule. You cannot fire an employee when he is on vacation or sick. When he returns, then we need to calculate him and issue documents.
• There is no need to notify an older employee in advance about upcoming redundancies. The law provides for mandatory notification of all hired personnel, regardless of age and position.

If there is at least one mistake, an older employee can complain to management. You can challenge dismissal pre-trial (through the labor inspectorate) and in court, in compliance with the established deadlines.

Working off

According to the regulations described in labor legislation, the administration informs the employee in writing about the upcoming reduction of his position. For two months from the date of delivery of the notice, the previous functional duties are to be performed.

But pensioners can exercise the right to early dismissal by drawing up an application with a corresponding request. If the employer agrees to terminate the employment agreement, the employee retains the right to receive severance pay and other payments provided for by legal acts, and is also paid a sum of money proportional to the period remaining from two months.

Attention

Pensioners have a pre-emptive right to terminate their employment relationship with their employer early, referring to Art. 81, clause 2, part 1 of the Labor Code.

If early dismissal is denied, the pensioner must work for the required period (2 months). An alternative option is voluntary resignation. The employee submits an application indicating the reason - retirement. The Labor Code allows you to resign in this case without working on the day specified in the application. But at the same time, a pensioner should not count on the severance pay due to the staff being reduced.

Legal regulation

Forcing dismissal when an individual reaches the age after which the citizen receives state subsidies is punishable in accordance with the provisions of Art. 3 of the Labor Code of the Russian Federation “Prohibition of discrimination in the sphere of labor”. An employer cannot refuse to employ an employee based solely on age criteria . The management of the enterprise may terminate the contractual relationship with the employee in the event of an official reduction in the company's staff in accordance with the provisions of clause 2, part 1, art. 81 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employer.”

Some categories of citizens are entitled to benefits if there is a reduction in pensioners due to staff reductions. Elderly people should know their rights. These privileges are specified in Art. 179 of the Labor Code of the Russian Federation “Preemptive right to remain at work when the number or staff of employees is reduced.” The amount of subsidies that are paid to a dismissed employee when optimizing production, the procedure for calculating payments are specified in Art. 178 of the Labor Code of the Russian Federation “Severance pay”.

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Entry in the work book

The text of the entry in the work book must match the contents of the dismissal order. It is entered by the personnel officer after the introductory signature of the pensioner under the order of the manager.

On the last working day, an entry is made in the work book, including the following data.

• Record number;
• Reason for dismissal (dismissal due to layoff);
• Link to the article of the code (Article 81, clause 2 of the Labor Code of the Russian Federation);
• Date of termination of the employment agreement;
• Signature of the head of the enterprise;
• Seal of the organization.

Attention

The order and entry entered into the work book must necessarily contain references to the article of the Labor Code of the Russian Federation.

Payments to pensioners during layoffs

Each person fired when the company's headcount is minimized is entitled to a cash payment. A worker can receive the following types of benefits:

• compensation for annual leave if you did not take time off during the pay period;
• subsidy in the amount of monthly salary issued upon dismissal;
• payments to ensure the previous standard of living in the amount of average monthly earnings, provided within two months after dismissal.

For individual citizens, the right is established to receive monetary support from the employer during the third month after termination of activity. Subsidies are paid if a citizen registers with the local Employment Center (hereinafter referred to as the Employment Center) 2 weeks after dismissal. According to the norms of the Labor Code of the Russian Federation, a pensioner cannot apply for unemployment benefits after a two-month period after dismissal, since he receives state subsidies. The center helps citizens find employment, but does not make cash payments.

Is it possible to appeal dismissal?

The list of redundant staff is compiled not on the basis of age category, but on professional suitability, taking into account changes planned in production. Therefore, people of different ages can get into it. The pensioner has the right to challenge management’s decision in court, citing the following reasons:

• belonging to a preferential category of persons (presence of guardianship, status of a combat disabled person, etc.);
• inability to exercise the priority right to stay at the enterprise or take a vacant position;
• if the notification deadlines were violated during the staff reduction procedure;
• if an incorrect entry is made in the work book;
• upon refusal to pay severance pay.

The reason for proceedings in state authorities is often the requirements of Art. 179 of the Labor Code of the Russian Federation, which clearly states that employees of retirement age should enjoy the preferential right to transfer to another division of the enterprise. A high qualification level and experience are always a priority for any organization. However, the proposed vacancy must be commensurate with the qualifications of the unit being reduced.

Important

Dismissal is considered illegal when the staffing table remains unchanged. This decision by management contradicts the regulations for processing documents related to reducing the number of staff.

Conditions for dismissal of pensioners during staff reductions

The procedure for eliminating a position occupied by a pensioner during the reorganization of a company and optimization of its activities is carried out according to the rules established by law and the provisions of the Labor Code of the Russian Federation. The employer must notify the staff and the labor exchange in advance about upcoming changes in the staff of the enterprise. The personnel department is obliged to offer the pensioner a similar position suitable for his qualifications and physical capabilities, with payment of the appropriate salary.

The layoff of a working pensioner gives him the right to all payments provided for other categories of employees. Receipt of government subsidies is not a valid reason for an employer’s refusal to pay severance pay due to a dismissed employee. When laying off a pensioner, factors of the worker’s special social status, high labor productivity, extensive experience, and length of service in the organization must be taken into account.