St. 179 of the labor code with comments. Who has the preferential right to remain at work

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2018-03-29 03:19:14

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Dismissal, while reducing at present – is not uncommon. In this regard, the worker must be competent in matters of reduction, in particular to know in which cases the employee has the right of abandonment at work.

Criteria for the decision on the decline

In the study of this issue should refer to article 179 of the labor code with comments, according to which a preferential right of abandonment at work when the reduction is given to employees in accordance with two criteria: performance and qualification.

To avoid unexpected consequences, in particular claims from dismissed employees, the employer should have a clear picture of the qualifications and achievements of the employees subject to further reduction.

When deciding about the value of qualifications the employer is to use the approved Qualification reference book of positions, which is determined by the position of the employee in an organization. In the absence of a position reference should assess the provisions of the labour and collective contracts. Assessment is comprehensively accounted for and the work experience, and marital status, and education level, and presence or absence of disciplinary sanctions.

However, in some cases the obligation to identify benefits from the employer is missing.article 179 of the labour code with comments

The assessment

Sometimes, the employer has no defined responsibilities for assessing qualification as an employee. For example, for the reduction of posts a structural part of the Department, as to not compare with anyone – the Department completely disbanded. If the dismissal occurs at a certain position, the reduction is considered mandatory. Failure to comply with procedures for conducting the assessment generally concluded that the court restores the employee in the organization, so in the interests of the employer to carry out this procedure with utmost care. The choice of method of establishing the importance of staff remains for conducting the test.

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h 2 of article 179 of the LC RF

Commission on evaluation of professional level of employees

In such a situation, the company created the special Commission on determining the pre-emptive right of abandonment of the work, this form is preferable for the courts of the Russian Federation. The Commission is made up of HR professionals, heads of departments, of which the dismissal of trade Union members and lawyers (in the absence of such a position in the organization the best solution would be additional legal advice, in order to avoid legal errors). The establishment of the Commission is to approve the appropriate orders, explaining the powers of each. Head like no other, knows how to describe the employee, the lawyer will be able to write a legal opinion to the personnel officer all better acquainted with the personal business of the employee.

Any Commission draws up the meeting Protocol, reflecting its basic information: information about present and absent, issues on the agenda, candidates for downsizing, complete information about employees and decision of the Commission.

A Convenient form for analysis will be statistical card or a comparative table, compiled according to certain criteria.

the Commission on determining the pre-emptive right of abandonment at work

Evaluation Criteria to identify the advantages

The Worker usually appreciate the experience and quality knowledge. As objective indicators examine the adherence to standards, performance targets, individual jobs.

The signs qualifications include skills, experience, and skills of the employee. In the assessment also take into account the level of education, presence of additional characteristics, quality and amount of work done, taking into account penalties and rewards at work and in other circumstances. In the case of the trial these circumstances will tilt the opinion of the judge in favor of the employer since the dismissal complied with the rules of article 179 of the LC RF. With the review court becomes clear which way is practice identifies strengths while reducing.

pre-emptive right of abandonment at work while reducing

Account service at dismissal

The career path of the employee is directly reflected in a document such as a work book. The procedure for confirmation of seniority is governed by two laws – “About labour pensions” and “About the individual personified account”. Also in this area are the “Rules of calculation and confirmation of seniority for the establishment of employment pensions" (22.07.02, Government Decision No. 555), «On the order confirmation seniority for pension purposes" (24.08.90, Decree No. 848).

Confirmation of the unrecorded experience (e.g., loss of the books or combine the work) can be done through employment contracts, Director's orders, reference. Periods of employment under civil law contract can be witnessed by the agreement on the provision of services and payment documents. Also about seniority you can learn by making a request to the pension Fund, in the presence of military tickets, certificates from the commissioners,archives units. Quite an extreme option – when disasters periods of employment are confirmed by the testimonies.

With the development of electronic databases has been improved and the system of personified record keeping – in recent years, all information is translated to digital format created by services like “Services”.

In any case, when considering individual candidates should be guided by the norms of article 179 of the labor code with comments to which the employer is familiar in advance to remember that experience is a very convincing argument for granting the right to abandonment while reducing.

legal advice

Accounting education and professional skills

Based on the provisions of the Federal law «About education», qualification is confirmed by diplomas, certificates, certificates. The documents usually are when applying for a job, and if already organized the Commission, but a diploma or certificate, may affect the decision about dismissal of the employee at work. But if, according to the Handbook, for a particular job does not require special education, then the evidence of completion of education will be considered an asset. Of course, the employer will be taken into account, for example, courses that enable to get additional qualification, language lessons, driving skills and more.

dismissal while reducing

Performance

St. 179 of the labor code with comments which it is important to understand one of the criteria for determining benefits calls productivity. In order for a dismissal to be lawful, it is necessary to collect documents that would confirm in court that a particular employee was doing work more difficult than his colleagues, or take additional work that is performed order a larger volume that is easily confirmed by agreements or orders.

The Most convenient way to compare – the use of tables, forms, which must be paid each task and the result for a certain period of time. Such accounting requires from the employer the accuracy of the personnel worker – efficient work at all times. Among the factors that affect performance, also included a disciplinary sanction and encouragement.

Categories of workers, to dismiss which is prohibited by law

There are a number of employees, the dismissal of which is prohibited even given the fact that their performance and qualification is not so high. It is primarily women with children or pending: pregnant women, children under 3 years, single mothers with children up to 14 years.

While the Supreme court in 2014 determined that single women are those who are raising children without a father in connection with death, being in prison or deprivation of parental rights.

the right of abandonment at work

Categories of workers, which is an advantage when qualifications are equal

Part 2 of article 179 of the LC RF specifies the list of workers who will benefit from the equality in assessing their skills and work: these are workers who have the contents of two and more dependents; individuals who have received employment injuries or diseases, associated with harmful and dangerous profession; people who became disabled as a result of military campaigns related to the protection of the Fatherland; invalids of the great Patriotic war; workers who pass training courses as directed by the employer without the job, and employees who are the sole breadwinners in the family.

Make mistakes while reducing

Among the errors made by the employer and lead to violations of the law include the decisions of dismissal in the absence of evidence on a high enough skill, ignoring the norms of the collective agreement, the non-use of rules of part 2 of article 179 of the LC RF. Judicial practice also dictates that the choice of the candidate from employees who have equal conditions and categories part 2 of article 179 of the labour code, it is necessary to use the sequence specified in the law. Thus, persons with dependents will have priority to citizens with disabilities.

Timely legal advice will help avoid problems with the law and avoid restorations of the employee in cases where the relationship with him is tainted.


Article in other languages:

AR: https://tostpost.com/ar/the-law/3886-179.html

BE: https://tostpost.com/be/zakon/6875-st-179-tk-rf-z-kamentaram-u-kago-esc-peravazhnae-prava-zastacca-na-pra.html

DE: https://tostpost.com/de/das-gesetz/6874-st-179-zgb-rf-mit-den-kommentaren-wer-hat-ein-vorzugsrecht-auf-dem-arb.html

ES: https://tostpost.com/es/la-ley/6880-art-179-del-c-digo-del-trabajo-con-los-comentarios-alguien-tiene-un-de.html

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TR: https://tostpost.com/tr/hukuk/6881-madde-179-i-kanunu-yorumu-ile-var-r-han-hakk-i-yerinde-kalmak.html

UK: https://tostpost.com/uk/zakon/6879-st-179-tk-rf-z-komentaryami-hto-ma-perevazhne-pravo-zalishitisya-na-ro.html

ZH: https://tostpost.com/zh/the-law/4189-179.html






Alin Trodden - author of the article, editor
"Hi, I'm Alin Trodden. I write texts, read books, and look for impressions. And I'm not bad at telling you about it. I am always happy to participate in interesting projects."

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