Is it possible to dismiss an employee under the Labor Code of the Russian Federation if he took out a mortgage? To answer this question, it is necessary to refer to Article 81 of the Labor Code of the Russian Federation. In principle, its list is not exhaustive, so there is a loophole for the legislators' initiative in the article. The employer can reduce, dismiss the employee for certain reasons. It doesn't matter how much the loan is. Reasons:
Liquidation of a legal entity (hereinafter referred to as LE).
Termination of IP.
Downsizing in YL.
Inconsistency of the employee with the position due to low qualification.
Change of the owner of the organization, the manager of the legal entity, the chief accountant.
Failure by an employee of the legal entity to fulfill his duties, without good reason, if this is done repeatedly.
Gross violation of their duties by employees.
Employees with a mortgage can not be fired during staff reduction?
The authors of the bill, State Duma deputies Vitaly Pashin and Danil Shilkov, propose to supplement Art. 81 of the Labor Code of the Russian Federation with a new part, establishing a ban on employers from dismissing employees who have obligations under a mortgage agreement for a residential building or apartment for housing purchased for the first time. This prohibition is expected to apply in the following cases:
Reducing the number or staff of employees;
non-compliance of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification.
It is also planned to provide employees with mortgages for newly acquired housing with a pre-emptive right to stay at work and make appropriate changes to Part 2 of Art. 179 of the Labor Code of the Russian Federation. Recall that today, employees with higher labor productivity and qualifications have an advantage in reducing the number or staff of employees. With equal labor productivity and qualifications, preference in remaining at work is given to:
Employees with two or more dependents;
employees in whose family no one else has independent earnings;
employees who received an occupational injury or occupational disease during the period of work with the employer;
disabled veterans of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
employees who improve their skills in the direction of the employer on the job (part 2 of article 179 of the Labor Code of the Russian Federation).
The explanatory note to the bill focuses on the fact that at present, for the majority of citizens, a mortgage is the only option for acquiring their own housing. Very often, young families with small children acquire housing in this way. It is noted that there are often cases when a person makes every effort to create a family, acquires an apartment on a mortgage for several years, and a month later the employer, on his own initiative, terminates the employment contract with him for formal reasons. After that, a person is left without a livelihood, with a large debt on a mortgage, which leads to the destruction of his family and an increase in the number of offenses committed in the country.
According to the initiators of the amendments, the adoption of the proposed changes will provide employees who have obligations under a mortgage agreement for a residential building or apartment for their first home with additional labor guarantees and support in a difficult economic situation.
A bill prohibiting the dismissal of workers who pay mortgages on a number of grounds was introduced to the State Duma in 2016 by two deputies from the Liberal Democratic Party of Russia (LDPR). In 2017, the lower house of parliament, having considered the bill in the first reading, rejected it. And this means that mortgage holders did not receive any benefits upon dismissal. However, it cannot be ruled out that indulgences for this category of workers will still appear in the future.
Is it possible to fire an employee with a mortgage in 2018
No law - no prohibition. In 2018, the labor legislation of the Russian Federation does not provide for benefits for laid-off employees who pay mortgages.
This means that in a situation where the employer is faced with a choice of whom to fire and who to keep, other things being equal, the presence of a mortgage can have a decisive influence only if the employer himself considers this factor significant. It has no legal obligation to do so.
A bill banning the dismissal of mortgage lenders was submitted to the State Duma in 2016. But he remained unaccepted.
As for the bill, it is an amendment to Art. 81 of the Labor Code (LC) of the Russian Federation, which lists all the grounds on which the employer has the right to part with the employee, regardless of his consent. The authors of the bill offered benefits for two categories of mortgage holders:
- subject to layoffs;
- dismissed due to the fact that they did not pass certification, if it is mandatory for the position held.
Another condition for the extension of the exemption was the use of the mortgage for the first time.
It is not allowed to dismiss an employee who has obligations under an agreement on the mortgage of a residential building or apartment, for the residential premises initially acquired by him in his ownership, on the grounds provided for in clauses 2 or 3 of part one of this article.
Draft Law No. 27093–7 “On Amendments to the Labor Code Russian Federation(on providing employees with obligations under a mortgage agreement for a residential building or apartment with additional guarantees upon dismissal at the initiative of the employer or in connection with a reduction in the number or staff).
http://asozd2.duma.gov.ru/main.nsf/(ViewDoc)?OpenAgent&work/dz.nsf/ByID&D0B3611E51810DE04325806D004F09ED
In the explanatory note to the document, the deputies indicate that the bill was designed to protect the bulk of consumers of this type of loan product - recent university graduates who often already have children. For them, a mortgage is usually the only way to purchase a home. And it is not uncommon for these people to find themselves on the street in a month or two after taking a mortgage loan and are left face to face with growing debt.
However, in July 2017, when considering the document in the first reading, the deputies rejected it. As of 2018, it is listed in the electronic database of the State Duma as an archive.
It cannot be ruled out that the parliament will nevertheless return to its consideration or that a new version bill on the same subject. But there are no guarantees. And most importantly, labor legislation has not yet undergone changes in favor of mortgage holders.
Which categories of workers already have benefits in case of staff reduction
In 2018, the set of privileged categories of workers remains relevant, the reduction of which is prohibited by the Labor Code of the Russian Federation. These include:
- single mothers or fathers raising a child under 14 or a minor with a disability;
- women who have children under three years old, regardless of the completeness of the family;
- guardians and adoptive parents of children under three years of age;
- mothers and fathers with many children, if at least one child in the family is under three years old, and the other parent does not work, the benefit also applies to guardians and adoptive parents. A large family is considered to be a family where three children are brought up;
- pregnant women;
- women on parental leave.
It is possible to dismiss an employee belonging to one of these categories only upon liquidation of the company.
Reducing women who have children under three years of age, the law prohibits
In practice, if the employer has no other choice but to dismiss the beneficiary, he is offered the option of parting by agreement of the parties. But it all depends on what compensation the employer offers. After all, the employee is not obliged to agree with its conditions and has the right to put forward counter ones. There is a known case when a woman in St. Petersburg signed a dismissal agreement and only after that she found out that she was pregnant and withdrew her consent. The employer ignored these circumstances, but the court sided with the dismissed employee.
Two more categories of workers can be reduced only in agreement with the trade union. These are minors, members of the trade union committee, if there is one at the enterprise, and its chairman. If the company does not have a trade union organization, the reduction of the minor must be agreed with the labor inspectorate and guardianship and guardianship authorities.
Finally, there are several categories of workers who, ceteris paribus, are entitled to expect that in the event of a reduction in staff, they have a preferential right to remain at work:
- having at least two dependents, which include not only children, but also elderly relatives, the disabled, etc.;
- sole breadwinners in the family;
- injured, occupationally ill or disabled in an organization that is reducing staff;
- invalids of wars, military operations, liquidators of the consequences of man-made disasters, in particular, the Chernobyl accident;
- directed by the employer for professional development.
Features of the dismissal of military personnel with a military mortgage
Military mortgage is a special case, relevant only for contract servicemen. With this benefit, the state allows them to solve housing problem with little or no outlay. But at the same time it motivates people in uniform to impeccable service for a long time.
Participation in a military mortgage is implemented according to the following scheme:
- After the signing of the first contract, the serviceman gets the right to become a member of the accumulative mortgage system (NIS).
- From the moment he joins it, he opens an account, to which a certain amount is transferred every year. He will be able to spend this money only on the purchase of housing or the repayment of a previously taken mortgage loan.
- After three years of participation in the NIS, a serviceman receives the right to use the money he has accumulated for the intended purpose. For three years, the account accumulates about a third of the maximum amount that he can count on from the state in the event of long-term impeccable service. The amount is calculated on the basis that by the age of 45 a serviceman becomes the owner of an apartment with an area of 54 m 2. In 2018, the maximum amount of a bank loan that banks can provide under military mortgage programs is 2.4 million rubles. However, you should not count on such a size: most likely, they will allocate less. If desired, the military can send the amount accumulated in the NIS later, and it will increase every year.
- As soon as the military exercises his right to purchase housing in a mortgage, the state makes monthly payments for it. The soldier or officer himself has the right, in addition to them, to make regular contributions from his own funds. They will go towards the early repayment of the loan.
The state uses the military mortgage as a means of motivating the defenders of the Fatherland
The best deal for him would be to serve 20 years. With such experience, upon dismissal from the army for any reason, he does not have to return to the state either the first installment (it is called a targeted housing loan - TsZhZ), or monthly payments. But the state does not owe him anything.
With a service life of 10 to 20 years, dismissal for preferential (good reasons) will be optimal for the military. In this case, he not only does not have to return anything to the state, but also receives the right to an additional payment, which he can use to repay the loan. The amount of the payment depends on how much time he did not have before twenty years of service. It turns out that the less he served, the more the payment. After all, it is understood that, if he had served properly for all the required 20 years, the state would have made monthly payments for him during this period.
Example. The soldier served 15 years, 2 months and 15 days. What amount will he receive as funds supplementing savings upon dismissal on preferential items? Before the onset of twenty years of service, he lacks 4 years, 9 months and 15 days. Accordingly, the amount of additional funds is calculated as follows: 245,880 * (4 + 9/12 + 15/365) = 1,178,034 rubles. The figure 245,880 is the annual funded contribution for 2015.
"Military mortgage and discharge from service"
http://pravila-deneg.ru/military-ipoteka/military-ipoteka-pri-uvolnenii
Beneficial reasons for dismissal from the army include:
- reaching the age limit for being in the army;
- health status:
- recognition unfit for service (with this ground for dismissal, the term of service does not matter);
- recognition of limited fit for service;
- operational-staff measures (in fact, an analogue of staff reduction in civil organizations);
- family circumstances.
If a military mortgage lender has served less than 10 years, regardless of the reason for dismissal, he must return to the state all the money paid for him within 10 years - both the first installment (CZHS), and monthly payments and interest on them, which are charged at the refinancing rate. He pays the rest of the mortgage debt to the bank from his own funds, and the encumbrance from the housing is removed after the return of the entire amount of the debt to them.
Similar conditions apply to military mortgage lenders, regardless of how long they have served, dismissed on the following grounds:
- end of contract;
- failure to comply with the terms of the contract;
- at will.
One more nuance must be taken into account. When a military mortgage lender who has served for more than 10 years is dismissed on preferential terms, only a bank mortgage is removed from his housing. However, since the acquisition of housing by him, it is also pledged to the state. If he wants to remove this encumbrance and become a full-fledged owner of the housing bought on a military mortgage, then he must fully pay off with the state. To do this, you will have to return the CHL and monthly payments increased by the refinancing rate. However, it is more profitable than buying an apartment yourself with a mortgage taken from a bank.
It is understood that if a graduate of a military school began his service no later than 25 years old, by the age of 45 he should have at his disposal an apartment on which the mortgage was paid to the bank. At the same time, he still has enough time to pay for it with the state. And a soldier can conclude the first contract during the period of military service by conscription. And the state directs her from the age of 18.
Military mortgage on a real example (video)
How to protect yourself in case of dismissal during the mortgage payment period
It makes sense for an employee to think about this even before taking on the mortgage burden. After all, trust in God and the state, but don’t make a mistake yourself.
Anyone who has read at least one book or completed a training in financial literacy is familiar with the term reserve capital. In everyday life, this phenomenon is also known as accumulation "for a rainy day."
Reserve capital (accumulation for a "rainy day", a financial airbag) is usually called a financial emergency reserve, equal to the amount of a person's monthly expenses for the period from three months up to one year. The optimal option is considered to be based on six months: practice shows that during this time the problem of replacing the lost source of income is usually solved with a guarantee. In a crisis, three months to find a job may not be enough, and the annual NZ will have to be saved for too long. After all, a reserve capital is formed from the funds that you have left after covering all mandatory expenses. If expenses are equal to income or you have to constantly take consumer loans, since earnings do not cover expenses, there is, unfortunately, no chance to form a reserve capital.
Some financial literacy experts recommend aiming in the long term for savings that cover expenses within two to three years. With such a reserve, in their opinion, it is possible to cope with such unforeseen expenses as certain types expensive treatment.
For example, a person earns an average of 50 thousand rubles a month, of which he spends 40 thousand. The remaining 10 thousand is the fund for the formation of his reserve capital. To collect the required amount based on the semi-annual spending limit, you will have to save exactly two years: 40x6=240, 240/10=24 months. If you reduce expenses or increase income (and even better - both), the period for the formation of the required amount of savings will be reduced in proportion to the adjustments you made.
Reserve capital can be kept under the pillow or in a stocking. But it's better to put it in the bank on a demand deposit
With monthly mortgage payments coming in, your mandatory expenses will rise. This means that your reserve capital must be increased taking this into account before you make the first installment. Numerous mortgage calculators on bank websites and independent financial resources will help you calculate the approximate amount of the payment based on your wishes for the housing you are purchasing and financial capabilities.
The author of these lines was himself a financially illiterate person almost all his adult life and had no reserve savings. When I got laid off at the end of 2008, instead of reserve capital, I had consumer credit and credit card debt. The search for a job dragged on, and the hour came when there was no money for them on time for the next mandatory payments. Then I managed to get off with little bloodshed, quickly restoring my solvency. But if I still had a mortgage on me, I wouldn’t just get out. After all, there are mandatory payments rather big.
Financial security: how to form a reserve capital (video)
What should a mortgage lender do if he was fired and there is no reserve capital
In such an unpleasant, but, unfortunately, common situation, the only way out is immediately, as soon as you lose your job, contact the bank that gave the mortgage loan and negotiate a debt restructuring. Most often, the result is a reduction in the amount of the monthly payment to a size that is feasible for you while increasing the loan repayment period. For example, the payment is reduced by one and a half times, and the loan repayment period is increased by five years (the figures are purely speculative, the real alignment is individual for each case).
If the mortgage lender was fired, it would be better for him to start negotiations with the bank himself, without waiting for collectors to pester him
It is also possible to have a loan vacation option for a period while you solve your financial problems. But there is no guarantee. In addition, vacations are always provided for a limited period. And if during this time you have not restored solvency, these are your personal difficulties.
The result of negotiations with the bank will depend on your credit and client history. The more careful you are as a borrower in more prosperous times, the stronger your negotiating position will be and the more loyal the lender will treat you. In any case, the bank is more interested in receiving money and interest on it than in the hassle of selling the housing of a troubled mortgage lender.
There is a common misconception among mortgage lenders that if the housing purchased for the bank's money is the only one, they will not be evicted from there in any case. But in fact, the prohibition of foreclosure on a single dwelling is valid only when this dwelling itself is not the subject of a pledge. Mortgages are provided just on the security of the acquired housing.
According to an acquaintance of the author of these lines, who worked for many years as a realtor and a lawyer specializing in the field of real estate, the story when mortgage borrowers or those who took a loan secured by an existing apartment only find out in the courtroom that they were cruelly mistaken regarding the ban on the withdrawal of the only housing on account of debt , happen all the time.
Whether the state will ban the dismissal of mortgage holders remains to be seen. Therefore, it will be more reliable not to expect favors from him and rely only on own forces. If the bill is nevertheless passed, it will be good news for mortgage holders and not so - for their employers, who will have an extra headache.
For many families, the only way to buy their own home is to get a mortgage. And in this regard, the question of whether borrowers can be fired from their jobs if there is a mortgage is more relevant than ever.
Labor legislation, recent changes
The Labor Code of the Russian Federation is the main law on labor, it spells out the grounds on which they can be asked to leave work and the reasons why an employee can leave himself. The Code, like any other law, is constantly changing, adapting to the needs of modern life. Some norms are added to it, others that are no longer relevant are excluded. This also applies to reasons for leaving.
So in December 2018, a bill was submitted to the State Duma proposing to prohibit the employer, on its own initiative, from dismissing subordinates who have issued a mortgage for the initial acquisition of residential premises.
Many families with small children put a lot of effort into buying a single home on credit for several decades, and after perhaps a few months, borrowers may be laid off and left with huge debts and without an apartment. Therefore, this draft law is important, and if it is adopted, mortgage lenders will have certain guarantees and confidence in the future.
True, the ban on dismissal of a person who has taken a mortgage loan applies only to a few cases:
- inconsistency with the position.
The manager can use all other motives for dismissal without risking breaking the law.
Who can't be fired from a job?
The Code even now grants certain categories of workers such immunity. But it is a mistake to think that such people cannot be removed at all under any circumstances. This is not true!
| Category of persons not subject to dismissal | What can they get fired for? |
| Pregnant woman | It is possible to dismiss a woman in a position if the employment contract, drawn up for the duration of the absence of another employee, has expired, and it is impossible to transfer her to another job. |
| A woman with a child under three years old. Single mother with a disabled child under 18. Single mother with a child under 14. Another person raising such children without a mother. The sole breadwinner of a child under 3 years old in a large family, if the other parent does not work. The sole breadwinner of a disabled child under 18 years of age. |
Liquidation of the enterprise. Systematic non-fulfillment of labor obligations with the already existing discipline. Serious non-compliance with work duties (truancy, drunkenness at the workplace, theft, etc.). Loss of trust in a financially responsible person due to misconduct. Conflict of interests. An immoral act, the use of methods of education associated with violence (only for employees who carry out educational functions). Employment on fictitious documents. |
When reducing employees, more likely to stay with a colleague with more highly qualified or labor productivity (179 of the Labor Code of the Russian Federation), and if for several people these two factors are equivalent, then priority is given to:
- Married and having two or more dependents.
- The only breadwinners (those who no one else works in the family).
- Those who have been injured or harmed while working at the enterprise.
- Those who received a disability in military operations to defend the homeland and the Second World War.
- Headed on the job for advanced training.
The internal acts of the company may provide for other groups of employees who cannot be removed from their positions.
For reference! With the reduction of employees of the enterprise, colleagues who have taken out a mortgage will have the primary right to remain in the service on a par with the indicated categories of citizens.
But the boss will have to choose those who will remain in the service, based on the totality of all factors. For example, a family person with two young children and a mortgage will have more chances to stay at work than a single citizen with the same loan.
Important nuances of dismissal
Article 83 of the Labor Code of the Russian Federation.
However, if the amendment banning the dismissal of citizens with a mortgage is adopted, such citizens still should not relax.
The employer will be able to dismiss them on their own initiative in case of violation by such subordinates of the norms established by labor legislation.
In addition, this amendment will not apply to leaving for reasons beyond the control of the parties (83 of the Labor Code of the Russian Federation):
- the former employee was reinstated in the service (by decision of state bodies);
- canceled the decision to reinstate at work;
- were not re-elected;
- the court sentenced to punishment and this makes it impossible to continue working;
- recognized as disabled;
- in case of war, natural disaster, emergency and other;
- disqualified or imposed an administrative penalty if it does not allow you to continue working;
- deprived of a special right (carrying a weapon, driving a car, etc.).
An employee may be fired if he himself refused to continue working for the following reasons (77 of the Labor Code of the Russian Federation):
- due to a change in ownership of the enterprise;
- changes in the terms of the contract;
- transfer to another position due to illness;
- office relocation;
- Work is associated with activities that are contraindicated for a person for health reasons.
- The employee does not have a document on education specified by law for his position.
- Violated the requirements of the law.
- Violated the requirements of the court verdict.
The contract may be terminated due to the expiration of the period for which it was concluded, regardless of the presence or absence of a mortgage.
In addition to reinstatement at work and wages not received during the “rest”, in the event of an illegal dismissal, one can demand compensation for non-pecuniary damage from the boss.
Buying your own home is certainly a significant and responsible event in a person's life, especially if a large amount of borrowed money is taken to purchase it. And the adoption of an amendment that protects the rights of mortgage borrowers will help reduce risks for both banks and citizens.
In mid-November, a law on the dismissal of mortgage holders was submitted to the State Duma. If it is adopted, citizens who bought housing on a mortgage loan will find themselves in a more privileged position than other employees at the threat of reduction.
Mortgage will protect against dismissal
The LDPR faction proposes to introduce a ban on the dismissal of mortgage holders. In mid-November, the corresponding bill was submitted for consideration to parliamentarians by deputies Vitaly Pashin and Daniil Shilkov.
The draft law calls it unacceptable to dismiss an employee who has obligations under a mortgage loan if an apartment or residential building is acquired for the first time. Thus, mortgage borrowers receive privileges that protect them from dismissal and put them on a par with other categories of vulnerable employees.
It will be impossible to terminate the contract with the employee paying the mortgage at the initiative of the employer, neither in the event of a reduction, nor even if the qualifications of the citizen do not correspond to the position held.
The desires of the authors of the bill are transparent - to support those who have taken the risk of improving their living conditions or have purchased their own housing for the first time using a mortgage. According to deputies, the vast majority of those who need additional protection from dismissal - young families in which children appeared, and it became necessary to take out a housing loan. People make plans, take money from banks in the hope of paying off the debt every month with the help of a salary, but all this can go to waste if a person is fired. He is left without a livelihood, with a small child in his arms, and even with a bright credit around his neck, the authors of the bill note.
If the bill to ban the dismissal of mortgage lenders is adopted, it will allow one to feel more confident in the future. In the end, the deputies note, the additional protection of credit borrowers will have a positive effect on the birth rate, and on sales of banking products, and on the construction and real estate markets.
By the way, opinion polls show that Russians support such innovations, however, only those who are employees. Businesses, however, do not like such an initiative, because no one will give a guarantee that mortgages will not become a screen behind which it is convenient to hide for unskilled specialists and outright lazybones.
Recall that earlier a draft law was submitted to the State Duma, which prohibits taking away from the debtor housing purchased under a foreign currency mortgage, if it has increased significantly in ruble terms. In early November, the State Duma in the first reading also supported the draft, according to which banks are required to inform citizens about high risks when applying for loans, including foreign currency mortgages.
Untouchables
According to the current legislation, today it is impossible to dismiss, including on reduction:
if a person is on vacation, including temporary disability, at his own expense or educational;
a woman preparing to become a mother;
women with children under 3 years old;
a parent raising a child under 14 alone or a disabled child under 18;
those who are members of a trade union or are the official representative of a collective of workers.
Art. 179 of the Labor Code of the Russian Federation also indicates persons who have the advantage of retaining their jobs in the event of mass layoffs:
combatants;
parents with many children;
sole breadwinners;
employees who have previously received industrial injuries or occupational diseases at this enterprise.
If the new bill is supported by colleagues, as well as by the government and the president, mortgage borrowers will receive a tangible bonus. However, it is not yet clear whether the government will go for a confrontation with the business community.
Many citizens are interested in whether they can be fired if there is a mortgage. There is a certain list of labor guarantees that apply in this situation.
Legislative initiatives
In November 2016, a bill was submitted to the State Duma to ban the dismissal of employees with a mortgage. At the moment, this is still only a draft of the document, which is being seriously worked on. It is planned to adopt normative act until the end of 2017.
The law on the prohibition of dismissal of workers with mortgages still contains too much controversial issues and nuances that need serious improvement. the main task at the same time, to protect employers and employees from dishonest behavior of the second party. There are fears that employers will try to get around the new ban on laying off workers with mortgages, and some workers, on the contrary, may abuse their rights. That is why it is important to resolve all these issues, preventing unpleasant examples of legal practice. The main objective of the document is to protect the rights of young families and provide serious guarantees to young employees.
It is planned that the employer will not be able to dismiss an employee who has a mortgage loan for the duration of the loan. In the event of a reduction, such employees will have the priority right to remain. It is also planned to introduce a ban on the dismissal of such categories of the population for not too gross disciplinary violations. In case of violation of the law on this issue, each party will be able to resolve the dispute in court.
The current labor legislation does not provide for a direct ban on the dismissal of employees with a mortgage, but enterprises have the right to include such a rule in the collective agreement.
Current regulations
At the moment, disputes between an employee with a mortgage and an employer are regulated by the Labor Code. If the employee does not belong to any preferential category of workers, then he can be dismissed on a general basis.
Now, in relation to employees with a mortgage loan, standard legislative norms apply, namely:
- Labor Code;
- specialized by-laws regulating labor relations in a particular area;
- collective agreement. Here, the employer can make a clause that it is impossible to dismiss an employee with a mortgage or any other on social guarantees for employees, but this is currently a right, not an obligation.
The Labor Code in Article 81 provides grounds for dismissal. The most common causes:
- violations of labor discipline (systematic delays, absenteeism);
- inconsistency of the position (based on certification;
- theft;
- downsizing, liquidation.
There are various additional grounds that are also provided, but are used very rarely: disclosure of trade secrets, loss of management confidence, refusal to move to the place of transfer of the enterprise.
Downsizing: can they be fired if there is a mortgage in 2017?
Downsizing is a common reason for layoffs. The dismissal procedure provides for many features and guarantees for various categories of employees. The law on the reduction of employees with mortgages will have to include these employees in the list of privileged categories of the population.
In some situations, despite the rights of employees and legislation, the company, for objective reasons, will not be able to continue cooperation (complete liquidation of the company). But all the same, the enterprise is obliged to comply with the norms of the law regarding the procedure for dismissing employees.
Downsizing is considered a common reason for layoffs these days. This is allowed by Art. 81 TC, but there is important nuances the procedure for dismissal of employees:
- 2 months in advance, the employee must be warned in writing about the upcoming reduction. At this moment, as well as immediately before the dismissal, alternative vacancies should be offered, if they are available at the enterprise;
- upon dismissal of workers, trade unions, the Employment Service must be notified in advance;
- the employee is paid an allowance in the amount of the average monthly earnings. After that, the employee can receive an average salary in the Employment Service for 3 months.
The collective agreement may also provide for additional payments for such employees;
The legislation does not prohibit termination of the contract by agreement of the parties. In this situation, the conditions for dismissal and cash payments are negotiated on an individual basis;
The employee has the right to underwork for 2 months (the period for which he was notified of the upcoming reduction). At the same time, he has the right to receive monetary compensation in the amount of average earnings for this period;
When compiling a list of candidates for dismissal, the employer must take into account the fact that the legislation provides for preferential categories of the population who are insured against dismissal at the enterprise. If this rule is violated, the employee will have every right to recover, receive monetary compensation for the time of litigation.
Labor guarantees
Article 179 of the Labor Code provides for a list of categories of employees who, in the event of a reduction in staff, enjoy the priority right to stay at work. There are also categories of the population that cannot be dismissed in the usual manner.
There are certain categories of workers to whom the state provides a certain list of social guarantees. In particular, they are insured against layoffs and staff cuts. These categories include:
- pregnant women and mothers of children under 3 years of age;
- single mothers with a child under 14;
- mothers of disabled children under 18;
- invalids.
The norm about disabled children applies to fathers who raise children on their own or are the only breadwinners where there is a child under 14 years old.
Among other employees, you also need to choose taking into account priority rights. If an employee does not belong to the privileged category of the population, then when choosing between two employees, he may have certain advantages. To such criteria in Art. 179 the legislator refers:
- the presence of a long experience in this enterprise;
- higher indicators of labor quality;
- highest qualification;
- training in a specialized institution in the specialty;
- the status of a participant in hostilities;
- having more than 2 dependents.
The contract may also provide for additional conditions that are priority for retaining the position for the employee. The norms of the employment contract cannot contradict the current legislation.
prospects
Now the rule that you can not fire a person with a mortgage is still only in the plans of the state. At the moment, no additional preferential conditions of labor legislation apply to such employees.
So, at the moment, mortgages and layoffs have nothing to do with each other. For employees with a mortgage loan, only valid labor and social guarantees are provided. If the Law on the non-dismissal of employees with a mortgage is indeed adopted, then, most likely, such employees will not only enjoy the priority right to stay in work, but will be completely socially protected from such actions of the employer. Even in case of inconsistency with the position held, the employer will only be able to send the employee to advanced training courses. Thus, young families will be more socially protected.
