The procedure for reducing external and internal part-time workers and the rules for making payments

External part-time worker – who is he?

External part-time workers (ES) include those employees who have several jobs. However, one of them is the main one. For the rest, the person is listed as a military personnel and performs duties during the time free from the main work. Most often, these are weekends and hours after the end of the official working day.

The legislation does not limit the number of additional organizations in which a part-time worker can work. His work must be officially documented, and the company and the employee himself must pay taxes in good faith.

The contract with the part-time worker is concluded on:

• specific period;
• an indefinite period, that is, it is indefinite.

The employer has the right to dismiss an external part-time worker on the same grounds as a full-time employee. This also applies to reductions.

What payments are due when part-time workers are laid off?

Are part-time workers entitled to compensation upon layoff? Payments are provided as follows:

• Wages are paid for days worked, which includes both the basic salary and the allowance and bonus additional payments provided for by regulations;
• Unused primary and additional vacations are compensated;
• Severance pay is accrued corresponding to average earnings. To determine its size, you need to know the average daily payment, which is the amount of wages for the last 12 months divided by days worked for the same period. The amount received is multiplied by the number of working days in the month following the dismissal.

Dismissal due to a reduction in staffing levels requires a full settlement.

Is severance pay paid when a part-time employee is laid off?

Having the full scope of labor rights, a part-time worker, even if he continues to work at the enterprise, upon dismissal from his second position, has the right to receive a one-time average salary.

Legal practice ambiguously interprets the issue of the need to pay benefits during the period of employment. There are two positions.

According to one, after dismissal, having registered with the employment center, a person can receive an average salary from his former employer for another 2 months.

The peculiarity of another position is that since a person who has two jobs, having lost, for example, a second place, remains employed at his main job, he is not entitled to such a payment.

Step-by-step instructions for reducing an external part-time worker

Compliance with the sequence of reduction of external part-time employees is just as necessary as when carrying out a similar procedure for payroll employees. The following steps should be taken:

Important! To avoid legal proceedings, it is reasonable for the employer to comply with all the requirements described in the Labor Code, including Art. 82 TK .

Reduction order

Order to dismiss a part-time worker

Notification of layoffs

Example.

Koltsova V.S.’s place of work, where she works full time, is Raketa LLC. She is a bookkeeper. In addition, Koltsova holds the position of chief accountant at Zaryana LLC (since June 2021). As of April 2021, she was fired from Zaryana due to layoffs. Labor Koltsova noted:

Are part-time workers laid off first?

Ruslan Gabbasov, an expert at the Legal Consulting Service GARANT, determines whether main workers have advantages over part-time workers when carrying out staff reduction measures.

The staffing schedule of the security agency includes positions of security guards, for which part-time employees are registered. Is it necessary, taking into account the provisions of Art. 288 of the Labor Code of the Russian Federation, when reducing the number of employees, remove the staff units where part-time workers work?

Downsizing means eliminating a certain number of staff positions, rather than eliminating specific employees. After the order to reduce the number of employees is issued, the employees subject to dismissal are determined. In this case, guarantees of the preferential right to remain at work must be taken into account (Article 179 of the Labor Code of the Russian Federation).

Part-time work is carried out on the basis of a concluded employment contract (Article 60.1, Article 282 of the Labor Code of the Russian Federation). According to the employment contract, the employer, in accordance with part one of Art. 56 of the Labor Code of the Russian Federation, is obliged to provide the employee with work according to the labor function stipulated by the contract.

Article 2 of the Labor Code of the Russian Federation proclaims equality of rights and opportunities for workers as one of the principles of legal regulation of labor relations. In accordance with Art. 287 of the Labor Code of the Russian Federation, guarantees and compensations provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations are provided to persons working part-time in full (with the exception of guarantees and compensations for persons those combining work with training, as well as those working in the Far North and equivalent areas, which are provided only at the main place of work).

Thus, a part-time employee has the right to demand that he be provided with work according to the labor function stipulated by the employment contract, on an equal basis with employees for whom work for this employer is the main one.

In accordance with Art. 179 of the Labor Code of the Russian Federation, when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications. With equal labor productivity and qualifications, preference in remaining at work is given to: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood); persons in whose family there are no other independent workers; employees who received a work injury or occupational disease while working for this employer; disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland; employees who improve their qualifications in the direction of the employer without interruption from work.

This norm does not establish any advantages for main workers over part-time workers.

Taking into account the above, there is no reason to believe that the position occupied by a part-time employee is vacant and the employer is obliged, first of all, to dismiss part-time employees and provide their jobs to main employees. This conclusion is confirmed by judicial practice (see, in particular, the cassation ruling of the St. Petersburg City Court dated July 7, 2011 No. 33-10309; the appeal ruling of the Investigative Committee for civil cases of the Kostroma Regional Court dated May 28, 2012 in case No. 33-820 /2012; ruling of the Investigative Committee for Civil Cases of the Nizhny Novgorod Regional Court dated September 18, 2012 in case No. 33-6854).

When making a decision on candidates subject to dismissal, the employer must compare the labor productivity and qualifications of both main employees and part-time employees, and if they are equal, then assess the presence of others specified in part two of Art. 179 of the Labor Code of the Russian Federation of benefits for remaining at work (see the decision of the Leninsky District Court of Perm dated September 4, 2012 in case No. 2-2936/12).

With regard to the provisions of Art. 288 of the Labor Code of the Russian Federation, by virtue of which an employment contract concluded for an indefinite period with a part-time worker can be terminated if the main employee is hired, then they are not directly related to the reduction procedure. As noted by the courts, the basis for termination of employment relations with a part-time worker provided for therein is the right of the employer, and not his obligation, and is not related to the implementation of measures under Art. 180 of the Labor Code of the Russian Federation (see, for example, the decision of the Votkinsk District Court of the Urals of November 18, 2011 in case No. 2-1496-2011; the decision of the Mariinsky City Court of the Kemerovo Region of December 13, 2010 in case No. 2-920-2010). In other words, the employer, in the event of a reduction in numbers or staff, is not obliged to dismiss a part-time worker even if the laid-off employee is applying for this job as the main one.

The texts of the documents mentioned in the experts’ response can be found in the GARANT legal reference system.

Order to dismiss an external part-time worker

Such a document is drawn up according to a standard form. T-8. It contains:

• Full name of the employee being dismissed due to reduction;
• the position he held;
• personnel number, if available;
• date of termination of the employment relationship;
• grounds for dismissal;
• information on compensation payments and withholdings;

The order is signed by the employer.

The part-time worker must familiarize himself with the text of the order and put his signature on it.

Additional reasons for laying off an external part-time worker

The Labor Code contains Art. 288, according to which it is allowed to terminate the employment relationship with a part-time worker if the employer has decided to hire the employee for this position on a permanent basis. To make changes legally, you must:

• notify the Armed Forces in writing 2 weeks before terminating the employment relationship;
• the agreement on the Armed Forces must be concluded for an indefinite period. When the end date is specified, the part-time worker has the right not to leave the workplace early.

Important! When a part-time worker is fired without providing written notice on time, he will receive the right to satisfaction in court, and, most likely, will win.

Payment calculation procedure

For settlements with external and internal part-time workers, the general rules of the Labor Code of the Russian Federation apply. To calculate severance pay, the average earnings for the last 12 months are used only for the position for which the reduction is taking place. Earnings and other income received for work at another enterprise are not used in the calculation. Severance pay is the only type of payment from which personal income tax will not be withheld.

Personal income tax and insurance contributions from severance pay when staffing is reduced

Compensation for average earnings for two months after dismissal, if a citizen acquires the right to such payment, is calculated at the time of actual dismissal. You can obtain it on the basis of an application and upon confirmation of the absence of an employment relationship with another employer. For the third month, similar compensation will be paid only on the basis of a proposal from the employment service.

If layoffs take place simultaneously at two enterprises where a part-time worker works, he will be able to receive severance pay and other guaranteed payments for each position. The procedure for calculating payments will be carried out separately for all internal and external part-time positions.

Frequent mistakes during dismissal

Important! External part-time workers are subject to absolutely all guarantees that are provided for in the Labor Code and relate to layoffs.