How to fire a pensioner without his desire according to the law. Of your own free will
The rules for dismissing employees are spelled out in the Labor Code of the Russian Federation. Dismissal of a socially unprotected category of citizens should take into account some features that do not apply to other categories of workers:
- The pensioner must submit an application indicating the reason - in connection with retirement;
- Provided in the Labor Code, the dismissal of a pensioner without two weeks' work, if he indicated the reason for the dismissal - retirement (paragraph 3 of article 80 of the Labor Code of the Russian Federation);
- For preferential dismissal of a pensioner, he does not need to provide documents confirming the benefit (pension certificate);
- Retirement is not a reason for dismissing an employee; it provides for a person to acquire a legal basis for receiving a retirement benefit;
- Since the Labor Code of the Russian Federation does not provide for the periods between the onset of pension grounds and the dismissal of a person, the employee can continue to work after retirement, and the employer does not have the right to personally set the term for his dismissal and thereby influence the person's decision;
- When submitting an application for dismissal with retirement, an employee must indicate in it the desired date of dismissal;
- A pensioner is dismissed at the time he wants, regardless of the date of retirement.
The existence of mandatory rules for an employer upon dismissal of an employee in connection with his retirement includes certain conditions for the employee himself, who has acquired the right to social benefits.
How to properly quit a job for a pensioner
The law stipulates that pensioners are those citizens who have been assigned an old-age pension on any basis, including preferential and early pensions.
If, upon dismissal, the reason was indicated - retirement, then the employee is provided with a legal benefit and the dismissal of the pensioner of his own free will occurs without work. And the employer must carry out the dismissal of the pensioner exactly at the time specified in the application. He cannot do this later than the date indicated in the application (Determination of the Moscow City Court dated 05/30/2013 No. 11-14536). At the same time, retirement is not a reason for the employer to automatically dismiss an employee; he cannot dismiss him on his own initiative. Dismissal takes place on general terms in a declarative manner.
Do pensioners need work when dismissing
When a pensioner leaves, do I have to work 14 days? Depends on one nuance. A pensioner, upon dismissal of his own free will, must work 2 weeks, if in the application he did not indicate the reason for dismissal - retirement... In this case, he is obliged, on general terms, to notify his employer about the desire to stop working two weeks before the very fact of dismissal. This time is given by law, and it is necessary for the employer in order to find a replacement for the position of the employee. If the employee does not indicate a preferential reason for dismissal (retirement), then the rule of no work does not apply - he is obliged to work two weeks at the request of the employer. He can not work out this time by agreement with his superiors, they have the right to let the employee go earlier than in 2 weeks.
The wording “retirement” is accepted as a valid reason for granting an individual the exclusive right to dismiss. If it is not specified, then the general rules for dismissal of their own free will apply for a pensioner.
A pensioner can be fired for organizational or production reasons, taking into account his age. For example, due to the inability of the pensioner to fulfill his job duties. In this case, he can be transferred to another place of work with easier working conditions and only with the written consent of the employee himself.
When reducing staff, the retiree must be offered a transfer to another position while maintaining the existing wage level. And in this case, he must be notified of the reduction in writing on an equal basis with other employees. In such circumstances, the pensioner has the right not to work for a two-week period.
The procedure for dismissing a pensioner of his own free will:
- The pensioner submits a letter of resignation (indicating the reason);
- The head issues an appropriate decree on the basis of an application;
- The HR department prepares documents for dismissal and submits them to the accounting department;
- The accounting department calculates the due cash payment to the pensioner on a general basis;
- The employee fills out and submits a bypass sheet;
- At the final settlement, he is given a work book.
In Russia, the age limit for retirement is set: for women - 55 years, for men - 60 years. The onset of the retirement age does not deprive the employee of labor and constitutional rights; the norms of law guaranteed to other employees continue to apply to him. But a pensioner has a number of advantages:
- unpaid additional annual 14-day leave;
- when reducing staff, qualifications, experience and work experience can serve as an advantage over other employees;
- the prohibition of discrimination on the basis of age, and, consequently, the prohibition of dismissal due to retirement age at the initiative of the employer;
- upon dismissal of his own free will, such an employee does not have to notify the organization in advance and work out two weeks (for the first time).
Is it possible to fire a pensioner at the initiative of the employer? Since pensioners are subject to the same rules of law as other employees, therefore, they can be dismissed under Art. 72-83 of the Labor Code of the Russian Federation:
- by mutual agreement;
- in connection with the expiration of the term of the employment contract;
- at your own request;
- in the order of transfer (at the request of the pensioner);
- changes in the terms of the contract, if the pensioner does not want to continue working in the changed conditions;
- if there is a medical opinion that it is impossible to continue working;
- in the absence of work suitable for the employee's health;
- refusal to continue working in another area;
- liquidation of the organization;
- when events occur that do not depend on the will of the parties;
- committing a guilty misconduct, excluding the possibility of continuing work.
The best option for terminating labor relations is the pensioner's own desire and the application written by him.
At the initiative of the employer, there is also dismissal due to staff reductions. But, as a general rule, he should offer all available vacancies. In addition, it is possible to terminate the contract in case of violation of discipline or in case of non-compliance with the position held.
Dismissal procedure
The specific procedure depends on the grounds for termination of the employment contract, which the employer will refer to in the future in the order.
In the case of redundancy layoffs, reference to the age of the employee would be illegal and the dismissal would be illegal.
The procedure must be properly formalized by an order for the organization, on the basis of which payments guaranteed by the law are calculated, and the employee must be notified in a timely manner.
Termination of the working relationship for medical reasons (recognition as completely incapacitated) is possible only if the prohibition to continue the activity is indicated in the medical certificate. If there are recommendations for transfer to another position, the employer is obliged to provide the relevant vacancies (if any). Only if the pensioner refuses the offered job, the employer can legally fire him.
On the last working day, the pensioner must hand over:
The subordinate must sign for the receipt of the work book and documents.
For guilty actions
Dismissal for committing a guilty misconduct may imply a variety of employee actions, ranging from violation of labor discipline to damage to property, theft, disclosure of secrets protected by law, and others.
In such cases, it is extremely important to comply with the dismissal procedure, because if it is violated, the employee can be reinstated in office through the court, which will entail unfavorable consequences for the employer.
First, the responsible person needs to record the fact of violation by drawing up an appropriate act about it; demand written explanations from the retired culprit, control his familiarization with the documents under the signature, in case of refusal to sign, issue acts. Based on the results, depending on the severity of the violation, make a decision on bringing to disciplinary responsibility and issue an appropriate order. In the event that a dismissal order is issued within the prescribed time limit, make a final settlement with the pensioner, hand over a work book and all required documents.
Due to the expiration of the term of the employment contract
Reaching the retirement age is not a legal basis for transferring an employee from an open-ended employment contract to a fixed-term one. However, if there is a desire of the employee himself, the conclusion of such an agreement is allowed. A special feature of the conclusion is its validity period.
How to fire a pensioner at the initiative of the employer
At the end of the established period, the pensioner must be dismissed. If the employer, after the expiration of the term, does not formalize the termination of the working relationship, the contract automatically becomes indefinite.
By agreement of the parties
Dismissal by agreement of the parties implies that the subordinate and the employer have come to a mutual agreement when deciding whether to terminate the employment relationship. They conclude a corresponding agreement about this, in which they indicate, for example, additional payments due in case of dismissal by agreement of the parties.
When concluding such an agreement, the employee must check before signing that all additional payments and conditions agreed with the employer are included in the agreement, otherwise he may be left without them.
There are enough reasons why an employer would like to retire such an employee. But what if the employee looks at it differently? How to comply with the procedure for legal dismissal without discriminating against the person being dismissed by age?
According to the provisions of the current Labor Code, pensioners are equal in rights and obligations to all other employees (Article 3 of the Labor Code of the Russian Federation).
But in some cases, retirement age guarantees certain benefits at work.
As much as the employer would like to fire a retired employee in order to get rid of certain difficulties and make room for young people, the law does not allow this.
3 of the Labor Code of the Russian Federation clearly defines that the retirement age in no case can be a reason for dismissal.
IMPORTANT INFORMATION!
Any insufficiently substantiated reason for dismissing a pensioner in court in most cases will be regarded as age discrimination, which is fraught with serious consequences for the employer.
If an agreement is reached, an agreement is drawn up, on the basis of which the employment contract is terminated.
The agreement must reflect the will of both parties and the amount of benefits that the employer will have to pay upon dismissal.
The rest of the grounds for dismissing a pensioner from office are no different from those provided for all categories of workers.
Like any other subordinate, a senior employee can lose his job if:
The employer has the right not to renew an employment contract that has expired, even if it is a contract with an employee who has reached the age of retirement.
Here is another legitimate reason to spend it on vacation.
NOTE! If the contract was drawn up with an indefinite period, then it cannot be terminated without reason.
ATTENTION!
If you cannot find a justified TC reason for dismissing an elderly employee who has ceased to suit the employer, you can look for a way out in which "both the sheep are safe and the wolves are full."
For example, instead of being completely dismissed from office, you can suggest that the retiree switch to part-time, part-time, or a shorter week.
Thus, the employee retains his job and self-esteem, and the manager saves on salaries and saves an experienced "cadre", for example, for mentoring and other functions.
If the retired person to be dismissed is a member of a trade union operating at the enterprise, the employer must obtain consent from this body to terminate the employment relationship.
If there was no response to the employer's request within a week, the opinion of the trade union about dismissal in the future can be ignored.
If a negative opinion is expressed, this does not mean that the employee cannot be fired: it will simply be necessary to follow the appropriate procedure regarding the dismissal of union members.
Let's summarize the important nuances regarding the dismissal of pensioners.
Working off in the event of dismissal of a pensioner is often left to the discretion of the employer. Dismissal of pensioners of their own accord without work is possible. This is indicated in the Labor Code of the Russian Federation (Article 80).
How to fire a working pensioner if he does not want to quit himself
Also, you do not need to work for 2 weeks if an employee leaves for health reasons.
But the employer has the right to demand that the employee stay on the termination of the employment contract. Does a pensioner work 2 weeks if he quits his job again? Yes, if the last time he was dismissed in the work book, a note was made "in connection with retirement."
Then he is obliged to stay late at work, like all other employees.
However, if the employer is still worried about how to fire a pensioner according to the law, this can only be done on a general basis and in cases determined by labor law.
In case of confirmation of the alleged information, the dismissal of a materially responsible pensioner is carried out in the manner prescribed for this:
All pensioners who have not stopped working after retirement are concerned about whether indexation, that is, an increase in the size of pensions with rising prices, is carried out for working pensioners.
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Features and nuances of the dismissal of a working pensioner at the initiative of the employer
Dear Readers!
The article talks about typical ways of solving legal issues, but each case is individual.
Dismissal of a pensioner: step by step instructions
Conversations about increasing the retirement age in Russia do not subside and from time to time flare up with renewed vigor. The group of specialists supporting this proposal is guided by the fact that in our country most of the retirees continue to work. The reasons for this are different, someone is being held so as not to offend, others are a valuable source of experience and knowledge. But what to do in a situation when the dismissal of a working pensioner is a necessary measure, or a person wants to voluntarily leave his workplace, or the organization is threatened with staff reductions.
Article 7 of the Federal Law "On Labor Pensions in the Russian Federation" gives the right to receive a labor pension for women from 55 years old, men from 60 years old.
How to fire a pensioner without his desire under the 2018 law
However, for many pensioners, age is not a sentence, and they continue to work with success. To avoid undesirable situations, every citizen must know their rights and enjoy them.
This is especially true for people who have reached retirement age. They should not consider themselves inferior, inferior and objectionable to their bosses, as is often the case.
How and for what a pensioner can be fired
The labor legislation of Russia allows citizens who have reached retirement age to continue working.
Unfortunately, the employer often tries to get rid of the pensioner as a "ballast". After all, older people are more likely to get sick, their ability to work is lower, they are less attentive and slower. But these and similar reasons cannot become a reason for the dismissal of a pensioner.
Consider how the dismissal of a pensioner should be legally carried out.
How to fire a working pensioner if he does not want to quit himself
After receiving retirement status, most people prefer to continue working - these are the realities of today.
Behind the shoulders of middle-aged employees - knowledge, experience, qualifications and other "wealth" applied to the years. Unfortunately, these often include health problems, which means private sick leave. An employee of retirement age does not always want and can adapt to changing requirements, master new skills, there are difficulties regarding personal relationships in the work collective, especially if you have to obey a young boss.
There are enough reasons why an employer would like to retire such an employee.
Compliance with the labor code and dismissal of a pensioner
A person who has reached retirement age can only be dismissed on the general grounds, which are provided for in the Labor Code of the Russian Federation, article 77.
This means that a woman or a man cannot be fired just because one of them has become a pensioner. If the boss violates this law, he will bear full responsibility for non-compliance with the Labor Code of the Russian Federation. This article of the Labor Code spelled out 11 conditions for dismissal.
Dismissal of a pensioner, the latest clarifications from the Ministry of Labor
The dismissal of a pensioner follows the same procedure as the dismissal of an ordinary employee, but with the observance of several nuances. These nuances are associated with the concept of "retirement". Not all employers correctly interpret this concept and accept a pensioner's application for dismissal of his own free will in violation of labor law.
In Art. 80 of the Labor Code of the Russian Federation states that an employee has the right to quit at his own request without working off the prescribed 2 weeks due to reasons that prevent him from continuing his labor activity.
"Labor Code of the Russian Federation" dated 30.12.2001 N 197-FZ
(ed.
2018) In cases where the employee's application for dismissal on his initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.
A guide to labor disputes.
Controversial situations upon dismissal for absenteeism 3.1.1. Is it legal to dismiss a pensioner for old age (by age) for absenteeism (subparagraph "a" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation) in the event of unauthorized use of leave without pay?
Dismissal due to age labor code
I am 54 years old.
I have worked as a chef all my life. For the last ten years I have been working at JSC. I work there as a cook in the dining room.
Recently, our boss changed, and he decided to fire me without waiting for the retirement age, but to put a young girl, his relative, in my place. My salary is good. I can safely take paid sick leave, go on vacation.
By the way, I have accumulated vacation for three months.
Pensioner Reduction Law
By virtue of article 127 of the Labor Code of Russia, in addition to salary, a former retired employee has the right to count on compensation for vacation that he did not manage to use during the period of his employment. Question: A pensioner was dismissed from his job due to a staff reduction (p. 2 tbsp. 81 of the Labor Code of the Russian Federation). Within two weeks, registered at an employment center to find a suitable job. Is he entitled to receive the average monthly earnings for the third month from the date of dismissal?
Habitat -\u003e
The owner explains this by the fact that the labor productivity of a pensioner is no longer the same as in previous years, it happens quite often an employee is absent from work due to poor health, providing sick leave, the need to provide a two-week vacation at a convenient time for the pensioner and simply a lack of jobs.
How to properly fire a pensioner in Russia in 2018
Although, it is difficult to understand where young people can get this notorious experience and work experience in their specialty, if employers and owners, both public and private enterprises and organizations, try to refuse employment under any pretexts.
The procedure for dismissing a pensioner under the Labor Code in 2018
A prerequisite is the consent of both the employee and the employer.
Upon expiration of the agreement.
When an employee is transferred to another position in another organization. If the citizen does not agree to continue work after the reorganization of the company. At the initiative of the employer, if there are appropriate grounds.
If the employee refuses to transfer to another position for health reasons (if there is a medical conclusion).
How to fire a working pensioner if he does not want to quit himself
There are enough reasons why an employer would like to retire such an employee. But what if the employee looks at it differently?
How to comply with the procedure for legal dismissal without discriminating against the person being dismissed by age?
According to the law, age cannot be a reason for refusing employment (Art. 64 of the Labor Code of the Russian Federation). A pensioner-veteran of the Great Patriotic War, if he continues to work, can choose the time for his vacation himself (clause 1. Article 15-16 of the Federal Law No. 5 of 12.01.95)
Can a pensioner be fired from work without his consent?
To do this, you need to provide a statement in which you indicate retirement as the reason for dismissal.
It should be noted that the law protects the rights of pensioners, therefore, in case of dismissal of their own free will, the latter are exempt from mandatory two-week work, and they are also given the right to choose the date of leaving; At the request of the employer.
in the event of the termination of the operation of the enterprise or its liquidation; if the employee committed a gross violation of labor laws or internal regulations; if the employee does not correspond to the position he occupies, which is confirmed by the unsatisfactory results of attestation; in case of staff reduction.
The procedure and features of the dismissal of a pensioner
For example, an employee has been assigned an old-age pension or pensioners who are entitled to benefits, in accordance with Art. 59 of the Labor Code of the Russian Federation, in this case, a fixed-term employment contract may be concluded. But it should be noted that both sides must come to this decision.
A pensioner should know that it is impossible to fire him just because he has reached the appropriate age.
A working pensioner does not belong to the privileged category.
Legislative nuances in reducing pensioners
In accordance with Part. 1 tbsp. 77 of the Labor Code of the Russian Federation, among the reasons for terminating an employment contract, the employee does not reach a certain age.
However, part 2 of Art. 77 of the Labor Code of the Russian Federation, allows the possibility of terminating an employment contract on other grounds provided for by law. For example, the age qualification is defined in the Federal Law of July 27, 2004 No. 79-FZ in relation to the age of civil servants.
Dismissing a working pensioner: the rights of retirees
And more often than not, workers who have recently retired are the best fit for this category.
Elderly working people are entitled to 14 days' own leave, acceptable working conditions and shorter working hours.
They can receive all these benefits on the basis of an exclusively voluntary agreement with the head of the enterprise. In the legislation of the Russian Federation, the rights of pensioners who continue their labor activity are not specifically stipulated.
How to cut a pensioner under the law
You can always find the optimal solution and not become a victim of the "cunning" bosses, who really do not want to pay you severance pay when they leave. All employees need to know that, according to the Labor Code, upon redundancy, the employer is obliged to: 1.
When reducing the number or staff of employees on the last day of work, the employer does not say goodbye to the employee, since labor legislation provides for certain payments even after several months after dismissal.
Laws and business in Russia
How to fire a pensioner under the law?
Today, any woman who has reached the age of 55 can retire, and a man - 60. In cases of reaching this age, a person has the right to write a letter of resignation in connection with retirement. It is written in the name of the management.
Is it possible to fire a pensioner without his consent
The company where the person works does not have the right to interfere with him, must sign this application within two weeks and issue a labor book. But nowadays, many people continue to work in retirement. And many employers often ask the question: how is it correct to fire a pensioner regarding the legislation? Indeed, in the legislation there is no clear scheme for dismissing people of retirement age.
It is necessary, first of all, to remember that the retirement age should not be the reason for the dismissal of an employee. For people who have reached old age, the same rules apply as for other employees. Indeed, in Art. 3 of the Labor Code of the Russian Federation., It is indicated that everyone has equal rights to exercise their labor rights.
If the company undergoes liquidation, reorganization, then the pensioner is dismissed on the same grounds as other employees. It is imperative to warn an employee - a pensioner about dismissal two months in advance, so as not to violate the law.
You should not fire a retired employee if he has health problems. In this case, the dismissal will not be legal. In order for the dismissal to take place legally, the employer needs to have proof that he, for example, is disabled. Then he can be fired. Before being fired, it is imperative to offer the pensioner an easier job. If it is not there, you need to explain it to him, preferably in writing.
Often, in organizations, employers ask themselves the question of how to fire a pensioner under the law. You can legally fire a pensioner, according to Art. 81 KZ RF, if he ceased to fulfill his official duties, in cases of truancy, appear at work in an alcoholic state.
There are times when a retired worker is a member of a trade union organization. Then the dismissal of the employee should take place only when there is an agreement of the trade union organization. If there is no response from the trade union for seven days, then according to the law, its opinion is not taken into account. Also, if the trade union does not approve of the dismissal, the employer still has the right to dismiss the retired employee, you just need to adhere to the procedure for dismissing the employee of the trade union.
And it is always worth remembering that dismissal must take place in accordance with the law, otherwise problems may arise that will have to be solved in court.
How can an employee protect his rights and not be unemployed? What are the rights of a personnel officer? Let's consider these questions and deal with difficult legal situations.
What does the Labor Code of the Russian Federation say?
In Art. 77 of the Labor Code of the Russian Federation describes in detail all the possible reasons for the lawful dismissal of officially employed workers. The law says about the dismissal of pensioners from work, that a person reaches a certain age or retirement is not considered a reason for dismissal. There are strict age restrictions only for certain professions and positions. For example, many government posts are not eligible for people over 65 years of age.
In part 1 of 179 Art. The Labor Code of the Russian Federation stipulates the need for a preferential right to preserve jobs for those employees who have valuable knowledge in their field of activity, high qualifications and solid work experience.
This directly contributes to the fact that in the event of a reduction in staff or forced dismissal, the employer leaves in the organization employees who have work experience and have the necessary knowledge. And more often than not, workers who have recently retired are the best fit for this category.
Elderly working people are entitled to 14 days' own leave, acceptable working conditions and shorter working hours. They can receive all these benefits on the basis of an exclusively voluntary agreement with the head of the enterprise. In the legislation of the Russian Federation, the rights of pensioners who continue their labor activity are not specifically stipulated.
According to Art. 137 of the Labor Code of the Russian Federation, the dismissal of working pensioners is possible only if the employee wants to leave the duty station of his own free will. At the same time, the code stipulates his right not to work out the two-week period, which is mandatory for ordinary dismissal.
Pensioner's rights
According to the current legislation, men and women who have reached retirement age have the right to resign of their own free will.
Wherein:
- the employer cannot require the employee to notify him of the dismissal two weeks in advance if the application states that this decision was caused by retirement by old age;
- if the subordinate does not indicate this reason, then he will be obliged to notify the boss about the dismissal in advance and work for at least 14 days after writing the application;
- work after the employee reaches retirement age does not in any way affect the possibility of receiving a pension.
In many private organizations, employers enter into fixed-term contracts with employees who have reached retirement age. However, these actions are illegal. Such contracts can only be concluded with the consent of the employee when hiring him.
The procedure for dismissing pensioners from work
In many enterprises, pensioners are simply transferred to another department to a less responsible position instead of being fired. But this can be done only under certain conditions:
- the transfer of an employee to another department or to another position should take place only with his permission;
- if the subordinate agrees to such an outcome, then an official transfer of the employee to a new permanent place of work must be formalized;
- the option of dismissing the employee from the previous position and subsequent employment of him at another job with the conclusion of a new contract is possible.
To transfer a colleague to a new place of work, you must:
- conclude an employment contract, which will indicate new job responsibilities and important conditions for the implementation of work activities;
- issue a transfer order;
- display information about the transfer to a new place of work in the employee's work book;
- on the third page of the employee's personal card, make a record of the transfer, and then give it to the employee for signature.
You can quit your job because of retirement without notifying the employer two weeks in advance, you can only once.
If, in connection with retirement, a colleague leaves the enterprise, his work book must necessarily indicate the reason for which he left his place of work.
Downsizing
In difficult economic situations, many managers are forced to decide on a sharp reduction in the number of employees at the enterprise. In most cases, workers of retirement age are the first to be hit. At the same time, the management is guided by considerations that they receive a pension and are socially protected, unlike other employees.
Such actions of managers do not directly contradict Russian Legislation and the Labor Code. But they cannot be called completely legitimate.
In case of redundancy, all employees of the enterprise have absolutely identical rights, and the administration of the enterprise should not make a decision on dismissal only on the basis of a person's reaching a certain age.
A layoff to lay off a retiree is no different from the layoff process for regular workers. An advance notice of dismissal must be given to the employee against receipt two months in advance. The head of the enterprise can offer the pensioner an alternative option and choose the appropriate position for him, which is not subject to reduction.
By agreement with the superiors, an employee can be laid off earlier than the two-month period expires. At the same time, he was entitled to monetary compensation (according to part 3 of article 180 of the Labor Code of the Russian Federation) for the entire remaining period, which he still had to work at the enterprise.
In addition, the employee may himself leave ahead of the appointed time, if he manages to find a new job. In this case, it will be enough for him to notify the management in writing and complete all the documents.
After the cut for retirees an allowance is paid equal to the salary for two months of work. No additional benefits are provided upon dismissal.
Payments and compensation
Payments upon dismissal to pensioners and compensation, if the care is carried out on general terms, are as follows:
- pay wages for hours worked;
- compensate for losses for unused vacation.
If a pensioner is doing part-time jobs, then payments for unused vacation are calculated based on the income received from such work.
If a pensioner is dismissed due to a reduction in the staff of the enterprise, then the following payments must be made to him:
- severance pay in the amount of average earnings;
- average earnings that are paid over two months.
Sometimes payments can be made during the third month, but for this it will be necessary to obtain permission from the state body responsible for the employment of the population.
Testing
How much do a pensioner work when he leaves? All the deadlines are described in detail in part 3 of article 80 of the Labor Code of the Russian Federation.
When leaving the enterprise due to retirement, the employee has the right to receive a full payment on the same day on which he writes a letter of resignation with the appropriate wording. According to the law, he is not entitled to any working off.
Working off when a pensioner is fired must be in the organization within three days, if he wrote in the application the following wording: "I ask you to dismiss me of my own free will as a working pensioner."
If the employee's request for dismissal indicates only his own desire as a reason and there is no reference to the retirement age, then he will be obliged to work the statutory two-week period as an ordinary employee.
When reducing the staff of the organization, a pensioner has the right to leave work at an earlier date than those indicated in the warning about dismissal. It is even possible to dismiss working pensioners without work.
The need for training in each specific case can be negotiated on a voluntary basis between the management and an employee of the organization. The rights of the pensioner will not be violated when concluding this agreement. If there is a desire for a person to leave work on the day of retirement, he should notify his superiors and accounting department in advance about this event in order to avoid misunderstandings with the receipt of the calculation.
What are the rules for dismissing pensioners by agreement of the parties?
Quite often, the practice began to spread when retirees continue to work, being in their old age. Everyone has their own reasons for this, prompting them to work. For some, this is a way to escape from the gray everyday life and free up energy, for others it is an additional income. It is difficult to reproach anyone, in all cases the goals of their work are obvious.
But, with increasing frequency, there are cases when the employer is trying to fire working pensioners, referring to the fact that it is necessary to give an opportunity to the younger generation (or by pushing for an increased pension for people over 80). Another reason, referred to by the heads of the company, is the fact that pensioners, due to their age, find it difficult to do physical work, which leads to a decrease in labor productivity, and this has a bad effect on the work of the organization.
In order to dismiss an employee in this case in a legal way without his desire, it is necessary to act strictly in accordance with the norms of labor legislation. Dismissal of a citizen without agreement with him can develop into a lawsuit, which will not play into the hands of the employer. Following the letter of the law, the employer can terminate the employment relationship with the employee.
Ways to legally dismiss an older employee
- Staff reduction... The process is carried out in full accordance with p. 2 h. 1 tbsp. 81 Labor Code of the Russian Federation, but it should be taken into account that there must be a good reason for dismissal with such a wording.
- Bilateral agreement... According to art. 78 of the Labor Code of the Russian Federation everything can be settled through a peace agreement terminating all labor agreements.
- Inappropriate qualifications... This is a good reason why it is possible to legally fire an elderly citizen, citing art. 81 of the Labor Code of the Russian Federation .
- Urgent contract and transfer to another type of work... A fixed-term contract can be drawn up immediately after the expiration of the current one, this method will be completely legal. In the case of a transfer, the factor is taken into account that a person is retired and cannot perform the entire volume of work and, in order not to harm production, he is transferred to a more simplified type of work activity.
The procedure for dismissing an employee of retirement age upon the request of the employer is rather laborious, therefore it is carried out exactly the same way as with any other employee of the organization. Any special measures to dismiss such a category of citizens are not provided for by law, and would even be considered a violation of rights. But, the law allows you to terminate work contracts on the basis of obvious violations by the employee, according to Article 81 of the Labor Code of the Russian Federation .
The procedure for dismissing pensioners of their own free will
Dismissal of one's own free will is made out in agreement with Article 80 of the Labor Code of the Russian Federation ... The pensioner must write a written application in which he asks to fire him, because he is retiring. Perhaps the employer may also require a copy of the certificate that the citizen receives a pension to the application, but this is not a legal action.
The application must indicate:
- last name, first name and patronymic of your employer;
- your data and occupation of an official position;
- letter of resignation and date.
All this is confirmed by the personal signature of the citizen.
Details on how the dismissal of their own free will without working off (new amendments of 2018) is formalized.
Does a retiree have to work 2 weeks when leaving in 2018?
Dismissal of a pensioner without working two weeks 2018 is envisaged art. 78 of the Labor Code of the Russian Federation ... A person of retirement age can legally refuse to work for a period of two weeks if the following conditions are met:
- If a person has reached retirement age while working in a direct enterprise.
- It is necessary to indicate the obligatory reason for leaving the job, namely that it is retirement.
How to fire a pensioner without his desire under the 2018 law?
Since a person of retirement age has special rights, such as the right not to work out a two-week period, the employer must be able to competently figure out how to dismiss such a citizen legally without his desire this year. You should also know the laws and rights of the employee himself, in order to be able to prove an unfair decision in the event of an offense.
In no case should you place an emphasis on the fact that a person receives pension accruals upon dismissal. Such an action would be considered a violation of the law, as it is in accordance with the labor code. Under the law, this category of workers is, of course, equal in rights with other workers, but there are a number of differences that are interpreted in favor of the elderly. Therefore, dismissal can only be based on the legislative framework.
Indexation of pensions for working pensioners after dismissal
Some retirees continue to work even after retirement. The employee works and thereby increases his own pension. Payments to citizens of retirement age who do not work are indexed every year:
- every year on the first of February, due to an increase in the prices of the consumption basket;
- every year on the first of April, from the pension fund.
Payments to those who are already retired, starting in 2017, are not indexed.
Pensioners have a number of benefits. These include the ability to ignore the 2 weeks of labor required for all other citizens. However, in some cases, the legislation allows you to argue about the legitimacy of the claims of this category of workers.
The legislative framework
For those who want to understand what legislative instruments should be used by pensioners upon dismissal, it is worth contacting Labor Codeand Federal legislation of the Russian Federation, in particular:- Article 80 of the Labor Code, in part 1 of which there is a requirement for two-week work, and in part 3 - exceptions that allow employees to finish working in the organization on the day indicated by the applicant in the submitted documents.
- Laws No. 173-FZ "On labor pensions ..." dated 17.12.2001 and No. 166-FZ "On state pension provision ..." dated 15.12.2001. They describe the possible types of retirement benefits.
When can a pensioner quit without work?
Not every dismissal in progress becomes the subject of controversy. More often, the process unambiguously meets the current legislation and assumes the absence of working off for a pensioner. In particular:- if a citizen receives the status of a pensioner, while we can talk about any type of pension provision, even;
- upon reaching an agreement between the management and the retiring pensioner, when the first officially allows not to work for 2 weeks;
- if the pensioner has already quit due to retirement, got a job again, and now has another good reason, allowing, according to the law, to leave on the day specified when drawing up the application;
- when there are no entries in the work book about a previous dismissal in connection with retirement, even if in fact the circumstances were such.
It is worth keeping track of all the entries made in the work book, since both work experience and a number of benefits can depend on the exact wording. Employers are not always attentive in such matters.
Does a military pensioner need work?
In such situations, disputes often arise. According to the law, in such cases, it is necessary to take into account the moment of hiring an employee:- if he was hired before he reached retirement age, the employer must fire him without work;
- if an employee got a job when he was already in the status of a military pensioner, the employer has the right to oblige him to work for 2 weeks.
Controversial situations
The problem arises if the pensioner has previously quit using the benefit. Both employers, lawyers, and the legal proceedings do not have a consensus on whether, in this case, the possibility of re-using the preferential dismissal of a citizen is allowed. Most often, such situations are faced, for example, by military pensioners who receive status at working age, get civilian jobs, but when they quit, they try to exercise their pensioner rights.There are several opinions on this matter, and there are court precedents for all of them:
- After receiving a pension status, a citizen does not have the right to re-dismissal on a preferential basis. It is understood that part 3 of article 80 indicates the actual retirement, and not the presence of a pension status, and with it the ability to leave several jobs in turn without necessarily working days. And this is logical: the second receipt of the pension status is illegal.
- If a citizen is already a pensioner, but has not previously enjoyed the dismissal benefit, he can be dismissed without working 2 weeks, if the employee himself expresses such a desire. In fact, the decision depends on whether there is a record on the use of benefits in the work book.
- There is no legally prescribed restriction on providing a pensioner with the opportunity to leave without work, which means that the right is permanent after retirement.
Dismissal on redundancy
Sometimes retirees are laid off. On the one hand, they are considered to be the most qualified and valuable personnel, on the other hand, the management often tries to put working pensioners on the lists for layoffs.2 months before the planned reduction, the pensioner is informed about the situation, offered the available positions, if any. The situation, regardless of what was entered in the work book upon retirement, gives citizens the right:
- quit without waiting 2 weeks;
- if necessary, vacate the position held even earlier than the specified term, and on any day after receiving the warning.
All that is needed to realize both of these rights is a written warning from management in the form of a written letter of resignation.
How long does it actually take?
The legislation leaves the employer the right to have 2 weeks at his disposal to find a replacement for a retiring employee. However, the period will not necessarily be so long - if there is a suitable employee in mind, the manager can agree to be fired any day. If there is none, the employee will have to work out all 2 weeks.Sometimes the length of the working period depends on the submitted application. For example, if the date of dismissal is indicated several days or weeks in advance, a pensioner can be dismissed from work only on that date, not earlier. In this case, until that day, you must fully fulfill your obligations according to the employment contract, no matter how many days remain until the actual dismissal.
The manager does not have the right to fire an employee due to retirement without his application before the date specified in the application. This applies to the transfer to a fixed-term contract, another place of work, and so on. The rights of a pensioner are carefully protected by law, and in case of violation, the court always takes the side of the dismissed citizen.
How to draw up a letter of resignation correctly?
As with any eligible document, a resignation letter requires a serious approach. It depends on him when exactly the pensioner will be able to legally leave his workplace. Therefore, it is important to know that:- when recording “to dismiss at will in connection with retirement”, there is no need to wait 2 weeks, and the citizen has the right to leave the next day after submitting the document;
- having specified the date, you cannot leave your post earlier;
- by entering “dismiss as a working pensioner”, the term of work can be reduced to 3 days;
- limiting the wording “