Vacant positions for redundant employees. What is considered a vacant position? Which position is vacant?

In the course of the activities of any organization or enterprise, a moment comes when the manager is faced with the issue of reducing the number of employees or staff. And as we know, the employer is obliged to offer the employee available vacant positions when reducing staff. Moreover, there are certain conditions for such an offer of a vacant position.

From this article you will learn:

• what positions are considered vacant;
• rules for offering vacant positions during layoffs;
• How to write a notification about a vacant position.

What positions are considered vacant?

To begin with, we need to define the concept of “vacant position”. There is no clear definition in the legislation of the Russian Federation. In this regard, most employees in practice understand that this is a position that is indicated in the staffing table, but not filled by an employee. That is, free.

But first, we still need to understand in what cases the employer is obliged to offer a vacant position. Let's consider.

1. When reducing the number (staff) of employees. This is regulated by Art. 81 Labor Code of the Russian Federation.
2. If the employee is not suitable for the position held, or has insufficient qualifications. This norm is specified in Art. 81 part 1 clause 3 of the Labor Code of the Russian Federation.
3. When an employee is reinstated by decision of the labor inspectorate (Article 83, Part 1 of the Labor Code of the Russian Federation).
4. In case of administrative punishment or disqualification. It is stated in clause 8 of part 1 of article 83 of the Labor Code of the Russian Federation.
5. When depriving an employee of a license, the right to drive a vehicle or other special right, if this entails the impossibility of the employee fulfilling his official duties (Article 83, Part 1, Clause 9 of the Labor Code of the Russian Federation).
6. Prohibition/termination of access to state secrets (Article 83, Part 1, Clause 10 of the Labor Code of the Russian Federation).
7. Transfer of an employee to another job for medical reasons. There must be a conclusion (Article 73 of the Labor Code of the Russian Federation).
8. If the parties change the essential terms of the employment contract due to changes in technological or organizational working conditions (Article 74 of the Labor Code of the Russian Federation).

In most cases, such situations end in the dismissal of the employee. And the only way out of the current circumstances is to offer a vacant position.

Remember! If there are vacant positions, the employer is not obliged to urgently fill such a position.

Important material from the electronic journal: ""

Many employers and personnel department employees often have a question: is the position of an employee who is on parental leave vacant?

We can immediately say that, of course not. Due to the fact that an employment contract was previously concluded with such an employee. This also applies to the issue when an employee holds a part-time position. It will also not be vacant (Article 60.1 of the Labor Code of the Russian Federation).

In turn, the legislation of the Russian Federation provides the employer with the right to conclude a new employment contract with a newly hired employee. But it doesn’t oblige him in any way. Therefore, you should not assume that a part-time position occupied is vacant.

Read about redundancy payments

Offer of vacant positions during layoffs

Article 81 of the Labor Code of the Russian Federation prescribes that the employer is obliged to offer a vacant position to a retrenched employee if it meets the following criteria:

1. Vacant.
2. The job must correspond to the employee’s qualifications (or must be lower paid).
3. The employee’s state of health allows him to perform his job duties.
4. The work must be in the given area.

A mandatory factor, in accordance with the legislation of the Russian Federation, is that during contraction the employer (HR employee) is obliged to inform the dismissed person at least two months before the expected date. At the same time, the legislation does not establish at what time a vacant position must be offered to an employee. And the employer can do this on any day from the date the order is issued.

In practice, there are cases when an employee may be on sick leave at the time of presentation of an offer for a vacant position. Then the employer must send the list by mail.

Another important question that worries many is how to take into account qualifications? We said earlier that when laying off an employee, his qualifications are taken into account. Article 195.1 of the Labor Code of the Russian Federation states that qualification is the level of knowledge, skills and professional skills, as well as work experience. But in order to convincingly prove in case of litigation that the cause is the incompetence of the employee, the organization must clearly develop job descriptions.

On a note! The employer is obliged to offer the redundant employee all vacant positions, even lower ones.

Read in the e-zine

Notice of job offer

After the manager has decided to staff reduction organizations. An employee of the personnel department urgently needs to draw up and send (give) to the employee a notice of the offer of a vacant position.

Typically the notification looks like this: The name of the organization is written at the top (as indicated on the form). Next, the name of the notification is indicated in the center: “notification of a vacant position.” Subsequently, after filling out the form itself, it will need to be assigned a number and dated.

In the right corner is written the name of the position and the initials of the employee (full name). Be sure to write the name and patronymic of the employee you are contacting. And then comes the text of the notification itself. It could be, for example, like this: “In connection with the upcoming reduction of your position (name indicated), another position available at JSC North and South is offered for “____” _____ 2016. You can perform this work taking into account your health and qualifications.” Subsequently, you must indicate the title of the position, salary, allowances, features of the working hours and what qualification requirements are imposed.

After listing the vacant positions, you will need to write down the following: “If you agree to transfer to any of the positions proposed above, an agreement will be concluded with you to change the terms of the employment contract from “___” ______ 2016.

Such a notice is signed by the general director of the enterprise or organization; at the bottom of the notice it is stated that the employee received a copy in hand, indicating the date and decoding of the signature.

Don’t forget to include the option to refuse the offered positions. It might look like this: “I refuse the offered vacancies/I agree to the vacancy______.”

Attached files

• Offer of transfer to another job due to reduction in number or staff (form).doc
• Employee's application to refuse a job offer due to staff reduction (form).doc

Available to subscribers only

• Offer to transfer to another job due to reduction in headcount or staff (sample).doc
• Employee's application to refuse a job offer due to staff reduction (sample).doc

Question: Is a position vacant if the responsibilities for this position are assigned to another employee by way of combining positions or if it is occupied by an employee with whom a part-time employment contract has been concluded?

Answer: When combining professions (positions), the employee occupies only one position in accordance with the staffing table and performs additional duties for the vacant position, while he has one employment contract for the main position, that is, such a position is vacant. In this case, the existence of contrary judicial practice should be taken into account.
In case of part-time work, an independent employment contract is concluded to perform work according to the position in accordance with the staffing schedule. The position held by a part-time employee is not vacant.

Rationale: The Labor Code of the Russian Federation (hereinafter referred to as the Code) does not define the concept of “vacant position”.
In accordance with Part 1 of Art. 16 of the Code, labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Code.
According to Part 2 of Art. 57 of the Code, conditions regarding the place of work, as well as the employee’s labor function, are mandatory for inclusion in an employment contract.
The labor function of an employee is to work in a specific position in accordance with the staffing table, profession, specialty, indicating qualifications; specific type of assigned work.
Combination of professions (positions) is the performance by an employee, during the established duration of the working day (shift), along with his main work stipulated by the employment contract, of additional work in another profession (position) for additional pay (Article 60.2, 151 of the Code). When performing additional work on a part-time basis, the conclusion of another employment contract is not required.
When combined, the employee occupies only one position in accordance with the staffing table.
Thus, it appears that the position, the duties of which are performed on a part-time basis, remains vacant. This conclusion is confirmed by judicial practice (for example, the Appeal ruling of the Moscow City Court dated November 22, 2013 in case No. 11-37802).
However, it should be taken into account that there is opposite judicial practice on this issue (for example, the Appeal ruling of the Kostroma Regional Court dated 03/03/2014 in case No. 33-323).
Part-time work 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 (Article 282 of the Code).
In this case, other work means performing work during free time from the main job under the terms of an independent employment contract.
Part-time work can be performed by an employee both at the place of his main job and with other employers.
The employment contract must indicate that the job is a part-time job (Part 4 of Article 282 of the Code).
Thus, with internal part-time work, in addition to the main employment contract, a second employment contract on part-time work must be concluded with the employee and an additional order on part-time employment must be issued.
The content of the employment contract for part-time work is also regulated by Art. 57 of the Code, a mandatory condition of which is, among other things, a labor function, that is, work in a position in accordance with the staffing schedule.
Thus, a position for which duties are performed on a part-time basis is not vacant.

• The employer transfers the employee to an unvacant position, and after the expiration of the temporary transfer, you dismiss him due to layoffs, since his position has been reduced and you cannot provide him with his previous job.
• The employer terminates the employment contract due to layoffs, and then registers the employee under a fixed-term employment contract to perform the work of an employee on maternity leave.
Some courts hold that an employer must offer part-time work as a vacant position. According to the judges who made such decisions, the dismissed person should be offered only available jobs. A position for which a TD has not been signed should be considered vacant. If an employee works on a part-time basis (hence, a corresponding employment contract has been concluded with him), the position is not vacant.

The part-time position is not vacant

However, an agreement to perform additional work establishes obligations for the employer that he cannot refuse and, as a result, will not be able to offer this work to the redundant employee. In our opinion, these features should be taken into account in each specific case separately, taking into account other circumstances. How to take into account the qualifications of an employee when reducing staff? As we have already said, the employer is obliged to offer the laid-off employee those positions that correspond to his qualifications or are lower paid and inferior.
The Labor Code clearly defines the qualifications of an employee. It refers to the level of knowledge, skills, professional skills and experience of the employee (Article 195.1 of the Labor Code of the Russian Federation).

Nine answers to questions about job offers

Labor Code of the Russian Federation)? (Information portal of Rostrud “Onlineinspection.RF”, April 2016)). In the event of exclusion from the staffing table of a position (profession) for which the employee is assigned to combine, the employer is not obliged to provide such an employee with the guarantees provided for in cases of reduction in number or staff. It is enough to follow the procedure for canceling an order to perform additional work (part four of Article 60.2 of the Labor Code of the Russian Federation). Answer prepared by: Expert of the Legal Consulting Service GARANT Natalya Koshechkina Response quality control: Reviewer of the Legal Consulting Service GARANT Elena Voronova May 31, 2016

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service. *(1) See Encyclopedia of Solutions.

Career

If an employee will have to engage in a new job for a certain time, then it is better to arrange an internal part-time job or a combination of professions (positions). With an internal part-time job, the employee performs additional work in his free time from his main job (Article 60.1 and Part 1 of Article 282 of the Labor Code of the Russian Federation). To do this, the employer enters into a separate employment contract with the employee (Art.

60.1 Labor Code of the Russian Federation). When combining professions, an employee does additional work during his regular working day. In this case, additional work is paid and is possible only with the written consent of the employee. Such rules are established in Part 1 of Article 60.2 of the Labor Code of the Russian Federation.

Is it possible to combine jobs that are not vacant?

My own lawyer

Before laying off an employee, the employer is required by law to offer him another job that will suit him. One of the criteria for any workplace is the vacant position. Lack of a clear definition There are many cases where difficulties arise in the area of ​​correct interpretation of the law in the sense that it is very important to correctly understand what actually constitutes a vacant position. To this end, the legislation clearly describes the signs of a vacancy in Moscow, the capitals of republics, regional and regional centers, throughout the country: 1. This is a job that fully corresponds to the qualifications of the employee being laid off. 2. This position is not lower paid or lower in position.
3. The employee has the ability to perform this work due to health reasons. 4. The location of the job suits the employee.

Vacant positions due to staff reductions

The Labor Code of the Russian Federation also establishes that when carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position). Neither the Labor Code of the Russian Federation nor other federal laws and regulations contain a definition of a vacant position. Many experts believe that a vacant position is one for which no employment contract has been concluded (see, for example, M.
Vasilyeva, E. Karsetskaya, I. Mikhailov, A. Shershnev “Employment contract” // “Economic and Legal Bulletin”, No. 7, July 2005; answer to the question: “The branch manager acted as the retired branch manager for two months.
St. Petersburg City Court of 10.10.2013 N 33-16070/2013, the ruling of the Krasnoyarsk Regional Court of 06/27/2011 N 33-5658/2011, the ruling of the Tula Regional Court of 02.02.2012 N 33-309, the ruling of the Lipetsk Regional Court of 31.08 .2011 N 33-2506/2011).In accordance with part one of Art. 60.2 of the Labor Code of the Russian Federation, with the written consent of the employee, he may be entrusted with performing, during the established duration of the working day (shift), along with the work specified in the employment contract, additional work in another or the same profession (position) for additional pay. Additional work assigned to the employee in another profession (position) can also be carried out by combining professions (positions) * (1). At the same time, combining professions (positions) and other types of additional work listed in Art.

Employers should also remember the need to offer the employee all vacant positions, including a lower-ranking position or lower-paid job, which, in the employer’s opinion, the employee will not agree to. Judicial practice confirms that since this obligation is enshrined in law, violation of it due to the belief that the employee will refuse the offered position may lead to the dismissal being declared unlawful (appeal ruling of the Moscow City Court dated August 6, 2013 No. 11-25018/13 ). Where to offer vacant positions? The employer must offer suitable vacancies available to him in the locality.

The obligation to offer suitable positions in other locations arises only if it is secured by a collective agreement, agreements or employment contract.

Is a part-time position vacant?

If any new positions become vacant, they should also be offered to the retiring employee. The main thing in this case is that the employer can confirm that at the time of the employee’s dismissal, transferring him to another position was impossible, since the employee refused all vacancies offered to him. If the employer has repeatedly offered the employee other vacancies, then he can transfer him to another position without waiting for the notice period to expire. The employer is obliged to say that the vacant positions are those that are currently vacant and to offer them, otherwise the transfer may be recognized by the court as forced, which means that the employer may have committed illegal actions.
The employer has the right, but not the obligation, to terminate the employment contract with a part-time worker if the main employee is hired (Article 288 of the Labor Code of the Russian Federation). In addition, work on it is carried out on the basis of a concluded employment contract (Article 60.1 of the Labor Code of the Russian Federation). At the same time, some courts indicate that if any staff unit is occupied by a part-time employee at 0.5 times the rate, the remaining 0.5 free rates are considered vacant (determined by the St. Petersburg City Court dated April 13, 2011 No. 33-4388/ 2011).

When combining a position without concluding an employment contract, it is also not vacant, since the work is performed and the salary is paid (determination of the Investigative Committee for civil cases of the Kostroma Regional Court dated February 13, 2012 No. 33-36).

Before laying off an employee, the employer is required by law to offer him another job that will suit him. One of the criteria for any workplace is a vacant position.

Lack of clear definition

There are many cases where difficulties arise in the area of ​​correct interpretation of the law in the sense that it is very important to correctly understand what actually constitutes a vacant position.

To this end, the legislation clearly describes the signs of vacancies in Moscow, the capitals of the republics, regional and regional centers, throughout the country:

1. This is a job that fully corresponds to the qualifications of the employee being laid off.

2. This position is not lower paid or lower in position.

3. The employee has the ability to perform this work due to health reasons.

4. The location of the job suits the employee.

If the work is located in another area, but the employer has the opportunity to offer it to its employee by way of transfer, this must be provided for in the employment contract or some other agreement.

Responsibilities of the employer when laying off an employee

According to the law, the employer must offer the employee a job that will satisfy him not only in terms of qualifications, but also correspond to his experience, health status, and location. And he must do this even before the termination of the employment contract, not only due to the dismissal of an employee, but also in many other cases, which are also provided for by the Labor Code of the Russian Federation.

Such cases include:

1. If the qualifications, health status, certification results or experience of the employee do not correspond to the position he currently holds.

2. If the employee who previously performed this work is reinstated to this vacant position, which can be determined by the labor inspectorate or by a court decision.

3. If an employee is disqualified or has received any other administrative punishment that prevents this employee from performing his job duties.

4. Other cases.

Vacant position as a free workplace

In practice, all sorts of disputes often arise regarding the concept of a vacant position. And this is due to the fact that there is no clear concept of a vacant position; it is not even spelled out in the law. In some cases, only vacant jobs are called vacant positions, that is, those positions that are not occupied by anyone. Some representatives of the law believe that the employer is obliged to offer those positions that are temporarily vacant due to the employee’s absence from his workplace, even when this workplace is retained by him. In this case, we are talking about so-called temporary vacant positions.

However, this position is not always correct and fair. Those positions assigned to temporarily absent employees cannot be vacant. The employer has the right to offer them to its employees in a special transfer procedure.

A free workplace, which is available in the staffing table, is a vacant position. At the same time, a vacant position is one for which no employment contract has been concluded with any employee. Employers are not required to offer employees transfer to positions that are temporarily vacant. It follows that they do not bear administrative responsibility for not informing employees about the availability of such positions. However, in the event of any dispute, the law is first on the employee’s side, especially since the law does not provide for such situations.

Can't be fired

Dismissal is possible only in cases where it is impossible to employ an employee, i.e. there is no vacant position. If he is transferred to a position that is reserved for another employee, this means that the employer does not fulfill his obligations to employ the employee, but only provides him with a temporary position, transfer to which is impossible on a permanent basis, because after the conclusion of the employment contract, a change in it deadlines are illegal.

In cases where the employer nevertheless decides to assign an employee to a temporary position, there are two options for further developments. The first is when an employer transfers an employee to a position that is unvacant, and when the period of his temporary transfer to this position expires, he dismisses him due to reduction, because his position has been reduced, and the employer cannot offer him another. The second option is when the employer terminates the employment contract with the employee, after which he signs it under a fixed-term contract. At the same time, he assigns to a position that is registered with another employee who is on parental leave.

Combination of positions

Some legislative sources indicate that the employer is obliged to offer as a vacant position the work performed by a part-time worker. The same is confirmed by judicial practice. Some judges believe that a dismissed employee is required to offer only those job positions that are not filled, and selection for vacant positions in such cases is not appropriate. And only a position that, according to the employment contract, is not filled by anyone can be considered free. If an employee works on a combination of positions, such a position should not be considered vacant.

What does the Labor Code say about combining positions?

There is a somewhat simplified procedure for combining positions, and there is one condition - to notify about this in writing within three working days. In cases where an employee works at half the rate, the other half remains vacant, which means that the employee must be offered such a job. Judicial practice also proves the existence of such a rule.

According to some provisions of the Labor Code, which speaks of the legislative understanding of the concept of a vacancy in Moscow, federal cities and in all constituent entities of the Russian Federation, if the employee has given written consent, then along with the main work, which is determined by the employment contract, he may be asked to perform additional work in correspondence with his profession and skills, and this is usually paid additionally.

When combining positions, an employment contract is not required, which distinguishes such cases from those when an employee performs part-time work. When combining positions, he occupies a single position, but the combined position in which he performs his duties remains vacant. In this case, employees working multiple positions receive additional pay.

The procedure for providing a vacant position to an employee

For each employee whom the employer intends to reduce from his current position, it would be advisable to make a list of available vacant positions that would suit him individually. Such a list must indicate all the basic requirements for his work experience, qualifications, size and features of the proposed work. If he is offered positions that are temporarily vacant, this must be indicated in this list, along with the reason why this position is temporarily unoccupied.

The procedure for notifying an applicant for a vacant position about available vacancies

There are several options here:

1. The employer notifies the employee once at the time of termination of the employment contract.

2. During the entire period of organization of regular activities, the list of vacant positions is periodically updated until the employee decides to transfer to one of them.

3. The employee should be notified twice - when he is given notice of the planned reduction in staff and when the employment contract is terminated.

List of vacancies

The employer independently decides in what order and how many times to introduce the list of vacancies to the employee. However, it must be taken into account that merely delivering a notice of transfer to another position is not enough, because during the time the employee receives such a notice, the number of vacant positions may change significantly. If any new positions become vacant, they should also be offered to the retiring employee. The main thing in this case is that the employer can confirm that at the time of the employee’s dismissal, transferring him to another position was impossible, since the employee refused all vacancies offered to him. If the employer has repeatedly offered the employee other vacancies, then he can transfer him to another position without waiting for the notice period to expire.

The employer is obliged to say that the vacant positions are those that are currently vacant and to offer them, otherwise the transfer may be recognized by the court as forced, which means that the employer may have committed illegal actions.

If a vacant position suits several dismissed employees at once, but there is only one, then the employer can independently decide to whom to offer this job, and first it is offered to the employee for whom it is most suitable. And only if that employee refuses to transfer to this position is it offered to everyone else.

Competition for filling vacant positions

The Labor Code of the Russian Federation states that one of the grounds for concluding an employment contract is the election of the appropriate position on the basis of a competition. Identical information can be seen in the regulations on competition for filling a vacant position or in the Decree of the President of the Russian Federation. This competition is carried out in order to fully assess the professional level of all candidates for the vacant position, as well as their compliance with all basic requirements for the position.

Who is eligible to participate in the competition?

Also, the Labor Code clearly defines all categories of workers who have the right to participate in the competition for vacant civil service positions. There are only three such categories - municipal employees, scientific and pedagogical specialists of higher educational institutions, as well as state civil servants. When it comes to other institutions, the procedure for concluding employment contracts may be provided for by other legislative acts of a more local nature, for example, regulations and charters.

In addition, the Labor Code establishes special requirements that must be observed when drawing up an employment contract as a result of choosing a candidate through a competition.

Entering the civil service

For an employee who takes part in a competition to fill vacant civil service positions and is hired in accordance with the above selection procedure, the legislation establishes the following requirements:

1. The employee must be a citizen of the Russian Federation.

2. The employee’s age is at least 18 years, that is, he must be an adult, and this is the main sign that he can fully fulfill his duties as a citizen of the Russian Federation.

3. The employee must speak the state language.

4. A person taking part in a competition to fill a vacant position and possibly a future civil service employee must meet all qualification requirements. To apply for some positions, you need to have a higher education, in other cases this is not necessary, so all the nuances must be carefully checked and taken into account.

Within a few business days, all applications received from candidates for the position are sent to a representative of the organization and all participants in the competition. A special competition commission selects one of them and makes a decision on concluding an employment contract. The remaining candidates have the right to be included in the organization’s personnel reserve.

The legislator established the obligation of the employer to offer vacant positions to employees when staffing is reduced. This position must be vacant, consistent with the employee’s qualifications, and may also be lower paid or inferior. In addition, the vacancy must be located in the same area.

In the activities of any modern company, there may be a need to reduce the number or staff of employees caused by business needs.

The employer is obliged to fully comply with the layoff procedure provided for by law in order for the dismissal to be lawful. Unfortunately, in practice it is not always easy to strictly comply with legal requirements, especially when these requirements are not clear enough and lead to discrepancies.

In this article we will focus on some nuances that may not be taken into account in the process of offering vacant positions, and also consider controversial issues.

What positions should I offer?

The Labor Code prescribes that a laid-off employee be offered positions that meet the following criteria (Article 81 of the Labor Code of the Russian Federation):

1) the position must be vacant;

2) the job must correspond to the employee’s qualifications or be lower paid (lower position);

3) due to health reasons, the employee can perform the proposed work;

4) the work must be in a given locality, unless the obligation to offer work in another locality is provided for by a collective agreement, agreements, or employment contract.

However, the Labor Code does not provide more detailed explanations regarding the established criteria for the proposed positions, and therefore employers have to rely on business customs and judicial practice.

What is a vacant position?

The definition of “vacant position” is not established by law. Therefore, in practice, a vacant position is often understood as a position that exists in the staffing table, but is not filled by any specific employee.

At the same time, a number of issues remain unclear, including the possibility of classifying as vacant a position that is filled by a temporarily absent employee (for example, on maternity leave or child care leave). On the one hand, this job is temporarily free, since the position is retained by a temporarily absent employee, and therefore is not a full replacement for the one being laid off. However, on the other hand, the law does not indicate that an employer must not offer temporarily vacant positions when it has no other vacant positions.

Unfortunately, there is no consensus on this issue in judicial practice. Thus, the St. Petersburg City Court came to the conclusion that the fact that a new job could be temporary cannot serve as a basis for not offering it to a laid-off employee (cassation ruling of the St. Petersburg City Court dated March 15, 2012 No. 33-3894/2012 ). Because the Labor Code provides for the employer’s obligation to offer the employee any job and does not indicate whether it should be permanent or temporary.

At the same time, the position of the Moscow Regional Court is different: the court points out that the employer is not obliged to offer temporarily vacant positions, since, within the meaning of the current legislation, they are not vacant (appeal ruling of the Moscow Regional Court dated December 20, 2012 No. 33-24613/2012 ). In addition, judges determine the vacant position. In their opinion, a vacant position is a vacant position that is in the staffing table, not occupied by anyone and not burdened with the rights of other persons, that is, an employment contract has not been concluded for it at the moment (including with an employee on maternity leave for a child, and with a partner) (appeal ruling of the Moscow City Court dated September 28, 2012 No. 11-2984/2012).

It is fair to note that the above definition also provides clarification on another question that often arises in practice: is the position occupied by a part-time worker vacant? No, it is not, since an employment contract has been concluded under it.

But at the same time, it must be taken into account that when combining, a separate employment contract is not concluded. However, an agreement to perform additional work establishes obligations for the employer that he cannot refuse and, as a result, will not be able to offer this work to the redundant employee. In our opinion, these features should be taken into account in each specific case separately, taking into account other circumstances.

How to take into account the qualifications of an employee?

As we have already said, the employer is obliged to offer the laid-off employee those positions that correspond to his qualifications or are lower paid and inferior.

The Labor Code clearly defines the qualifications of an employee. It refers to the level of knowledge, skills, professional skills and experience of the employee (Article 195.1 of the Labor Code of the Russian Federation).

Courts have indicated that the description of qualification requirements in job descriptions is the basis for determining suitability for a position. In this regard, in order to have appropriate arguments in the event of litigation, the employer needs to make sure that the job descriptions contain clear qualification requirements.

In addition, the courts often believe that the employer has the right to assess the real ability of the laid-off employee to perform work in the available vacant positions, taking into account his education, qualifications, work experience and existing skills (cassation ruling of the Moscow City Court dated July 19, 2013 No. 4g/2-6454/ 13). That is, the employer, if he has a work record book, educational documents and other available information, can judge the employee’s qualifications.

However, unfortunately, the employer does not always have such information in full. An employee, for example, may have failed to provide information about additional education that was not directly related to the position being reduced, but could serve as evidence of the employee’s qualifications to fill a vacant position. In this regard, in order to minimize possible risks, the employer should offer the employee the widest possible list of vacant positions so that the employee can choose a position that matches his education and experience, independently assessing his qualifications. At the same time, the offer of all vacant positions, including those that do not correspond to the employee’s qualifications, does not constitute misleading the employee. The Moscow City Court came to this conclusion (decision of the Moscow City Court dated September 27, 2013 No. 4g/5-9578/13).

Employers should also remember the need to offer the employee all vacant positions, including a lower-ranking position or lower-paid job, which, in the employer’s opinion, the employee will not agree to. Judicial practice confirms that since this obligation is enshrined in law, violation of it due to the belief that the employee will refuse the offered position may lead to the dismissal being declared unlawful (appeal ruling of the Moscow City Court dated August 6, 2013 No. 11-25018/13 ).

Where to offer positions?

The employer must offer suitable vacancies available to him in the locality. The obligation to offer suitable positions in other locations arises only if it is secured by a collective agreement, agreements or employment contract.

The Supreme Court of the Russian Federation in its ruling gave a clear definition of the concept of “other locality”. Thus, another area is an area outside the administrative-territorial boundaries of the corresponding locality (post. Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

It does not matter whether we are talking about vacancies in another branch or structural units, since the only criterion is the need to offer all vacancies in a given area.

When and how to offer vacancies?

Since the law does not clearly establish when and how to offer vacancies, the employer should offer them throughout the entire period from the moment of notification of the layoff until dismissal. For the purpose of documentary evidence, the employee must be notified in writing, against signature, of vacancies, indicating the date of notification.

Thus, since the offer of vacancies to retrenched employees is one of the elements of the dismissal process, in case of incomplete compliance with the procedure for offering vacant positions, the dismissal may be considered unlawful. And this may entail not only the reinstatement of the employee, but also the payment of average earnings for the period of forced absence and compensation for moral damage.

Opinion

Is the position occupied by a part-time worker vacant?

The law does not contain a definition of the concept of “vacant position”. At the same time, judicial practice takes a strong position that a vacant position is one that is not occupied by any employee - the position is indicated in the organization’s staffing table, but an employment contract for its replacement has not been concluded with anyone (rulings of the Vologda Regional Court dated May 18, 2011 No. 33 -2323/2011, Rostov Regional Court dated 08/15/2011 No. 33-11141, etc.).

Part-time work 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 (Article 282 of the Labor Code of the Russian Federation).

This definition does not allow a part-time position to be considered vacant, since an employment contract is concluded with a part-time worker, just like with a “regular” employee, and the part-time employee has equal rights with the “regular” employee. The courts unanimously adhere to this position (rulings of the Moscow City Court dated September 28, 2012 No. 11-2984/2012, St. Petersburg City Court dated July 7, 2011 No. 33-10321, etc.).

At the same time, although an employment contract concluded for an indefinite period with a part-time worker can be terminated if a person is hired for whom this work will be the main one (Article 288 of the Labor Code of the Russian Federation), termination of an employment contract with a part-time worker is a right, not an obligation employer. Consequently, the employer is not obliged to offer a position occupied by a part-time employee to a layoff employee, dismissing the latter and providing the vacated position to the layoff employee.

Opinion

Temporarily vacant positions as a vacancy

A vacant position must be understood as a position that is legally (no one is listed in the staffing table) and actually not occupied by anyone. It is not a vacant position in which an employee is listed in the staffing table, but is temporarily not working and can always return. For example, a position reserved for an employee during the period of maternity leave (Article 256 of the Labor Code of the Russian Federation) or sick leave for pregnancy and childbirth (definition of the Investigative Committee for civil cases of the Omsk Regional Court dated February 15, 2012 No. 33-1239/2012).

If a position is occupied by a part-time person, it is also not vacant. The employer has the right, but not the obligation, to terminate the employment contract with a part-time worker if the main employee is hired (Article 288 of the Labor Code of the Russian Federation). In addition, work on it is carried out on the basis of a concluded employment contract (Article 60.1 of the Labor Code of the Russian Federation). At the same time, some courts indicate that if any staff unit is occupied by a part-time employee at 0.5 times the rate, the remaining 0.5 free rates are considered vacant (determined by the St. Petersburg City Court dated April 13, 2011 No. 33-4388/ 2011). When combining a position without concluding an employment contract, it is also not vacant, since the work is performed and the salary is paid (determination of the Investigative Committee for civil cases of the Kostroma Regional Court dated February 13, 2012 No. 33-36).

Despite the above nuances of labor relations, the author recommends that employers, in order to avoid unnecessary conflicts, offer the redundant employee all suitable and temporarily unoccupied positions that are not vacancies in the legal sense. Rostrud shares a similar opinion (letter of Rostrud dated July 29, 2009 No. 22636-1). He indicates that the employer can offer the dismissed employee the position of an employee on parental leave.

Please note that this position will be temporary and not permanent. And the person being laid off must be notified in writing about this in order to avoid complications in possible legal disputes.

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