How to properly fire a pensioner in Russia in 2020? Basic concepts, the procedure for the procedure, benefits upon termination of employment - you can learn all this from this article.

The necessary information

Dear Readers! The article talks about typical ways of solving legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and WITHOUT DAYS.

It's fast and IS FREE!

Nowadays, quite often people continue to work after reaching old age.

This fact sometimes forces the employer to fire an employee, as his productivity decreases, health deteriorates.

Another reason for dismissal is that the employer is interested in the development of young professionals.

Important concepts

How to fire a pensioner without his desire by law in 2020

To fire an employee of the age of retirement without his desire, the employer must act exclusively in a legal way (according to labor law).

Otherwise, the process may end up in court. Then the pensioner can demand reinstatement and payment of moral compensation. As a rule, the court in most cases takes the side of an older employee and defends his interests.

In the procedure for dismissal, the employer must demonstrate knowledge of the law and apply it competently. It is strictly not allowed to focus on the receipt of pension accruals by an employee and recognize given fact reason for dismissal. It is considered a violation of the law..

According to article 3 of the Labor Code of the Russian Federation, an employee of retirement age cannot be fired if he does not give his consent to this.

The exceptions are cases of liquidation of enterprises, violations at the workplace by the employee. In the event of a forced dismissal, a pensioner can file a lawsuit in court, and the court often takes the employee's side.

Applicable standards

The main current standard on the issue of dismissal of employees of retirement age is the Labor Code Russian Federation, Articles 77, 78, 80, 81. According to the Labor Code of the Russian Federation. According to this decree, the employee's achievement of retirement age is not a valid reason for his dismissal.

Basically, dismissal without the consent of the parties in this case will be considered age discrimination. In accordance with Article 127 of the Labor Code of the Russian Federation, a retired former employee has the right to receive compensation for unused vacation.

Also, the issues of dismissal of pensioners are regulated by the Federal Law No. 400 of 1.1.2015 and the Federal Law of December 17, 2001, No. 173 "On labor pensions in the Russian Federation."

The main aspects of the question

The legislation of the Russian Federation does not imply the possibility of dismissing an employee solely because he or she reaches retirement age.

However, a retired employee can be dismissed on a general basis. According to the current legislation, a pensioner and a young employee are equal in their rights, in addition, the court is almost always on the side of the pensioner.

Procedure order

The process of firing a retired employee is complex. The law does not provide for special measures for the dismissal of employees of retirement age. However, the employment contract can be terminated due to violations by the employee.

There are several ways to fire an older employee: by general agreement, at the initiative of the employer, or on their own pensioner.

By agreement of the parties

One of the recommended ways to legally fire a pensioner is through a bilateral agreement. In this case, the termination of the employment contract occurs at the initiative of both parties. A sample application for dismissal by agreement of the parties is possible.

In this case, an agreement is concluded on the termination of the contract (in duplicate) with an indication of the amount of severance pay and a decision on the passage of work.

The dismissal can be initiated by both the employer and the employee. After signing the agreement, the employer draws up an order to dismiss the employee and fills out the work book.

Once the contract has been drawn up, it cannot be canceled. The withdrawal of the agreement can be carried out only by mutual agreement of the parties.

Sometimes the employer offers an older employee to move to an easier job. This can be due to health problems of the pensioner.

To do this, he needs to have a medical certificate with recommendations for working conditions.

Transfer to a lighter position can be carried out only by agreement of the employee himself. In case of refusal, the employer has the right to fire him. It is also possible to provide part-time work - this option is the most optimal.

When staff downsize

Downsizing is often the reason for dismissal. In this case, the employer refers to the inadequacy of the employee's health status. If an employee works on the basis of an employment contract, then he can be dismissed at the end of the contract, without concluding a new one.

In accordance with article 77 of the Labor Code of the Russian Federation, this reason is recognized as legitimate. When reducing staff, first of all, they pay attention to pensioners.

There are certain rules that the employer must follow in this matter:

• the employer must notify employees two months before the layoff;
• an official order is drawn up;
• the employee is calculated on the set date, as well as the issuance of all personal documents.

If a working pensioner was dismissed without his consent in accordance with the law (Labor Code of the Russian Federation, article 81), then he is provided with certain guarantees.

These include the payment of severance pay, equal to the average salary of an employee (Article 178 of the Labor Code of the Russian Federation). Also, in the case of subsequent employment, the person must retain his average monthly salary for two months. This benefit is provided only to working pensioners.

At the initiative of the employer

Dismissal of an elderly employee should be carried out on a general basis. There is no law that allows you to fire an employee solely because he or she reaches retirement age.

In some cases stipulated by law, dismissal can be carried out compulsorily at the initiative of the employer.

These include:

• liquidation of an enterprise;
• violation by an employee of duties related to work;
• inadequacy of the employee's qualifications;
• violations in the workplace (absenteeism, theft, alcohol consumption in the workplace).

Own wish

The departure of a pensioner can be carried out at his own request. Every citizen of the Russian Federation has the right to receive state pension benefits. As a rule, such voluntary withdrawal does not count as termination of the employee.

In this case, the employee must personally write a letter of resignation due to retirement.

The following information is indicated in the application:

• Full name of the employer;
• personal data and position held;
• request for dismissal;
• date and signature.

The time period between dismissal and receipt of pension benefits has not been established. A citizen decides for himself when it is convenient for him to submit an application - directly on the date of reaching retirement age or upon the actual end of employment.

What are the benefits upon termination of employment

The legislation provides for the dismissal of a pensioner without working a two-week period. This means that a pensioner can quit any day without giving two weeks' notice of his intention.

This benefit is guaranteed by the Labor Code of the Russian Federation and is provided in connection with circumstances that do not allow a citizen to continue working. Reasons of this kind include the employee's retirement.

For this, a citizen of retirement age can refuse to complete it, subject to the following conditions:

• a citizen has reached retirement age while working at an enterprise or organization;
• the reason for dismissal is the person's retirement.

A pensioner who has been fired can count on the following payments and compensation:

• wages and arrears (if any);
• severance pay;
• vacation compensation;
• payments stipulated by the employment agreement.

Thus, the dismissal of an elderly employee is a rather complicated process with many nuances. In order for the employer not to be accused of discriminating against a person by age, he must be aware of the laws in force and carry out dismissal based on them.

Dismissal of a pensioner of his own free will without work is a possibility provided for by the current Russian labor legislation. This procedure differs from the standard exit from work. They are associated with such a concept as access to state support in old age and are manifested in matters of working off, the procedure for leaving office.

Labor legislation about the dismissal of a pensioner without work

Article 80 of the Labor Code of the Russian Federation and its parts provides detailed explanations about the dismissal of pensioners of their own free will without working off.

It states that the worker has the right to terminate the employment relationship “one day” if he has reasons that prevent him from continuing to work. Part three of this article clarifies that the reason for leaving may not be named, but if this allows the employee to receive additional benefits, then it must still be indicated.

Writing and filing an application for dismissal of a pensioner without working off

With regard to employees of retirement years, this means that in the event of a transition to state support due to old age, a pensioner can quit without working two weeks, according to Rostrud.

This is due to the fact that the removal from the working role and receiving benefits for labor activity is the implementation of the right enshrined at the legislative level. This fact is an obstacle to the continuation of work activities. But since leaving work in this case gives the citizen the right to receive additional benefits (benefits upon reaching 55 or 60 years), the reason for leaving is still required to be indicated in the application.

The wording will look like this:"I ask you to dismiss me from my position (the date of dismissal set by the employee is indicated) in connection with my retirement."

In the application for the termination of industrial relations, the employee must indicate:

• personal data (full name) and the position of the authorized representative of the employer;
• your last name, first name and patronymic;
• position held;
• a request to terminate an employment contract;
• the date from which the industrial relationship is to be terminated.

It is not required to attach copies of a pension certificate to such a document, as some heads of enterprises require. This is against the law.

Terms of termination of labor relations with a pensioner

There is an opinion among directors that the termination of industrial relations with elderly employees on the day of writing the application is possible only on the day of its release to state support. This opinion is wrong.

So article 80 of the Labor Code of the Russian Federation about the dismissal of a pensioner at will without working off, as well as the entire Labor Code does not set deadlines that must be met between the state's retirement age and the termination of production activities. This means that even after some time after the date of departure of the employee to a well-deserved retirement, he can leave his post and independently set a time limit for this.

Features of suspension from work of elderly employees and their development

The legislation specifies that retirement on the so-called retirement pension is not a basis for suspension from work, as indicated by Article 3 of the Labor Code of the Russian Federation. However, this can happen on the worker's own initiative. In this case, it is not required to warn in advance about this; you can leave your post on the day of writing the application.

note: You can leave without working due to the state support due to old age only once.

This means that if later a pensioner got a job at another post, when leaving it, he must indicate other reasons, for example, "of his own free will." In this case, the head of the enterprise will have the right to appoint an additional 14 working days.

In the event of a staff reduction or liquidation of the company, the dismissal of a working pensioner is made on a general basis. Also, an employee who has reached old age can be removed from his post on the initiative of the management if violations of the work schedule are noticed and there are grounds listed in Article 81 of the Labor Code of the Russian Federation.

The procedure for terminating industrial relations with an employee of retirement age and working off in 14 days

Departure from the position, if the employee receives, is carried out according to the same principles and standards as for other employees.

The only difference is that a pensioner may not work for 14 days.

The rules for the termination of industrial relations assume that it can occur:

1. at the initiative of an employee;
2. by mutual agreement of the parties.

In each of the cases, a statement is drawn up in which all the required information is indicated. Next, the employer draws up personnel documents, pays the calculation.

There is also no difference between how the dismissal takes place in case of staff reductions and the dismissal of a working pensioner of his own free will: work is not required in both cases.

The difference between the earning of a working pensioner and a retiring person

Many believe that old age is the basis for receiving benefits and indulgences from the employer. This is not true. A working pensioner can also be laid off with the payment of the allowance required in this case. Some of the directors see such citizens as experienced workers, with whom they try not to part. For others, these are the employees who are laid off in the first place. In this case, the choice depends on the head of the company himself.

If we talk about the timing of work, then when specifying the reason for "retirement" - it is not required. If the employee asks in the application to remove him from work on his own initiative as a working pensioner, then it will be necessary to work for three days. If there is no reference to this kind of circumstance, then the termination of the employment relationship is carried out in accordance with the general procedure.

Important! Even if there is a possibility of leaving the position “one day”, it is better to warn about your intentions in advance in order to get the calculation on time and avoid misunderstandings with the chief accountant of the organization.

Calculation of a retired pensioner without work

The procedure for dismissing pensioners of their own accord without working off presupposes compliance with all other rules for carrying out such procedures. This means that upon termination of production activities in connection with access to state support due to old age, the employee receives a payment.

The calculation consists of the following parts:

1. wages for the number of days worked in the billing month;
2. compensation for "unclean" leave (if the worker has such);
3. additional benefits - at the discretion of the employer.

In the event of a staff reduction, the allowance for the first three months after it is added to these payments, and in the regions of the Far North - for the first 6 months. Such compensation can be reduced only if the employee was involved in seasonal work or refused to transfer to another enterprise.

Thus, the need for working off when a pensioner is fired for a period of two weeks depends on whether such an employee retires for the first time or again, since in fact he is already there.

The process of dismissing employees for employers is accompanied by the emergence of responsibility of the company's management for the decision.

Failure to comply with the established norms of the law may entail administrative and criminal liability.

Many questions arise when working pensioners are fired.

Do you need two weeks' work?

Russian laws provide for the termination of employment contracts on the initiative of the worker with the obligatory notification of his intention to the employer in advance. 14 days is the time for working off.

Working pensioners belong to the preferential category of workers, working off is not necessary for them.

Thus, there is no need for working off. Pensioners may not work at all. Employing a company, they get a certain freedom of action.

But in this question, there is a certain condition: work is not needed only for the initial dismissal of a pensioner in connection with retirement.

If the elderly employee has already terminated the employment relationship due to retirement, then the due 2 weeks from the date of writing the application he will still have to work. The head of the company himself can give indulgence, given the age of the subordinate.

Important points

Having accepted the statement, an employee of the personnel department prepares the necessary order, which is the basis for the calculation wages and compensation for unused vacation time.

The phrase "in connection with retirement" protects the pensioner from the arbitrariness of the administration of the enterprise. The employer is obliged to dismiss the applicant on the day specified in the application.

Sometimes employers mistakenly assume that a pensioner can break off work obligations only on the day of retirement without work. And if an elderly employee has a desire to quit after reaching retirement age, then he is assigned to work. These actions are illegal.

The pensioner has the right to terminate the employment relationship at any time convenient for him, the date of retirement does not matter.

Every employer needs to remember:

• without the personal desire of a pensioner, it is impossible to fire him only because he has reached retirement age (Article 3 of the Labor Code of the Russian Federation);
• judicial practice shows that in the event of labor disputes, the court takes the side of the pensioner, and his rights at work are restored;
• upon liquidation of an enterprise, pensioners are dismissed, as well as main employees;
• if an elderly employee, due to age-related changes, cannot cope with his duties, and does not want to leave, then the employer can offer him more soft conditions labor.

In a company, a working pensioner can afford to terminate employment earlier than the rest of the staff.

conclusions

Business leaders sometimes use the regulatory framework for their own purposes. The desire to get rid of the pensioner pushes the employer to persuade the older worker to leave. There can be many excuses, but the goal is one - to get the pensioner to leave.

Such actions are illegal. A pensioner can be dismissed exclusively on his personal initiative (Article 77 of the Labor Code of the Russian Federation). There can be no other options.

If the pressure from the management does not stop, it is necessary to write a complaint to the supervisory authorities.

Often the employee continues to work even after reaching retirement age, but at some point, nevertheless, wants to quit and go on a well-deserved rest. In order for a dismissal to become not just a quit of work, but a retirement, it is necessary to correctly draw up an application and issue a dismissal according to all the rules.

Termination of an employment contract

The main question is: what is the best way for this category of workers to quit their jobs? The very procedure for dismissing a pensioner of his own free will hardly differs from the usual termination of a contract at the request of an employee, however, upon dismissal there are two situations to consider:

• the employee has previously been fired due to retirement and is leaving again;
• he is applying for resignation for the first time since reaching retirement age.

In the first case, the termination of labor relations is carried out in a general manner, without taking into account the reindexing of the pension and the possibility of leaving without work.

Below we will consider the procedure for dismissal upon retirement - how an employee of retirement age can properly quit his job.

1. The occurrence of the basis is the filing of an application by the employee.

What is the correct way to quit a working pensioner? In accordance with any employee has the right to apply for resignation of his own free will. But for persons dismissed due to retirement, the obligation to work does not apply, so the employee has the right to indicate any date without counting 14 days (part 3).

It is important to note that any coercion by the authorities to work before the dismissal of a pensioner is illegal (subparagraph "b" of clause 22 PPVS RF dated 17.03.2004, No. 2) and entails administrative responsibility for:

• for an enterprise - from 30-50 thousand rubles a fine;
• for its head - from 1-5 thousand rubles.

The application is registered in the personnel department with fixation in the log book. In the absence of this body - by the head of the organization or his secretary.

1. Dismissal order.

For the publication of this document, the management of the organization use the T-8 form, developed by Resolution of the State Statistics Committee No. 1, or letterhead. When dismissing a pensioner, the document must reflect:

• a link to an employment contract;
• the date of its termination (the day indicated in the application as the last working day);
• information about the dismissed person (full name, position);
• the wording of the grounds - “dismissed (a) of his own free will in connection with retirement”;
• a link to clause 3, part 1;
• reference to the document-basis (date of application submission);
• the signature of the head of the organization.

The dismissed employee gets acquainted with the order under the signature.

1. Registration of personnel documents and their handing over.

The personnel department must issue a work book, which is subsequently given to the dismissed pensioner, and then his personal card, which will be stored in the organization.

The work book is issued according to the rules of the Decree of the Ministry of Labor of Russia No. 69:

• columns 1-2 - the ordinal number of the entry and the date of its entry;
• column 3 - the wording of the dismissal and a reference to the norm of the Labor Code of the Russian Federation (“dismissed (a) of his own free will in connection with retirement, paragraph 3 of part 1”);
• column 4 - reference to the Order of Dismissal.

After the employee is given a work book, he must sign on a personal card (form T-2 or an individual form of the organization), which indicates:

• reasons for dismissal with reference to the Labor Code of the Russian Federation;
• reference to the Order on termination of employment.

In addition to the work book, the dismissed receives in his hands:

• certificate of income for 2 years;
• information about the listed insurance premiums;
• a copy of the order (issued only at the request of the employee).

1. Calculation with the dismissed and indexation of pensions.

Since this is a dismissal of his own free will, the employee has the right to count on only two basic payments (,):

• salary balances;
• compensation for unused vacation.

Pension indexation (increase by the consumer price index) is made 3 months after the dismissal. The pensioner, in accordance with, receives:

• an increased pension (from now on it will always be indexed);
• difference between old and new pension for 3 months.

How to write a statement correctly?

It depends on the correctness of the written statement exactly how the employee will need to be fired: as an ordinary employee, with a two-week working off, or, nevertheless, as a pensioner.

Since the application for dismissal in connection with retirement does not have a unified form, it is drawn up arbitrarily.

1. Document header.

There are no peculiarities here, in the upper right corner it is necessary to indicate:

• to whom the application is submitted (name of the organization, position and full name of the head);
• from whom (name and position of the dismissed).

1. Main part.

In this part of the application, it is necessary to use the exact wording “dismiss at will in connection with retirement”.

In addition to it, you must specify:

• link to part 3;
• a convenient date for the employee to terminate the employment relationship.

In the main part, the employee can also indicate what documents he wants to get his hands on, except for the work book (a copy of the order, a 2NDFL certificate, etc.).

1. Final part.

The employee must sign their application and put the filing date. Since retirees do not work out leaving work, the date of application and dismissal may coincide.

The application is registered in the personnel department (or by the head himself in the absence of this body), about which a mark is put in the form of the signature of the person who accepted the document and the date of acceptance.

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.

Dismissal of pensioners on their own without working off

An employer cannot fire an employee when they reach retirement age. At the same time, a pensioner does not have any privileges in front of other employees when dismissing.

Every employer should remember that:

• if the pensioner does not want to quit himself, he cannot be fired due to reaching the retirement age - Art. 3 of the Labor Code of the Russian Federation;
• the court, as a rule, protects the rights of pensioners, therefore, such an employee can be reinstated at work with all the consequences for the employer;
• if the company is liquidated, then pensioners are dismissed on a general basis;
• you can offer the retiree to take a part-time job or change the position. This must be done when such an employee can no longer cope with his duties, but does not want to leave work.

The procedure for dismissing pensioners

Reaching the retirement age is not a reason for dismissal, but the employer may offer such an employee a different position. This is allowed if the employee himself gives written consent.
You can fire a working pensioner on a general basis:

• on his initiative;
• at the initiative of the employer;
• by agreement of the parties.

The general procedure is not much different from the dismissal of any other employee, but a pensioner may not work out the prescribed 2 weeks.
If there is a reduction in staff, then the pensioner has the preferential right to remain at work. And although there is no direct indication of this fact in the law, employers prefer not to part with such valuable employees. However, at many enterprises, it is people of retirement age who are cut off.
If a working pensioner was noticed in violations that threaten him with dismissal, the employer can safely part with such an employee, having correctly completed all personnel documents.

The procedure for dismissing a pensioner of his own free will

A working pensioner may wish to quit on his own. This is not against the law. The employer has no right to prevent this fact.
If the reason for dismissal is retirement, then the employee only needs to write a letter of dismissal, indicating the date and reason - "retirement". You don't need to work for 2 weeks. The employer dismisses such an employee in accordance with all the rules, giving him a full payment - wages and compensation for unused vacation. Some employers provide additional severance pay to retirees. In the work book, you must make an entry "in connection with retirement."

A pensioner can continue to work even after the onset of retirement age. He can resign at any time, but the employment relationship can be terminated on this basis only once. If the pensioner subsequently found a new job, he will be fired on a different basis. For example, "at will".
If a working pensioner indicates such a basis in the application, then he also does not have to work out the prescribed two weeks.

Dismissal of a pensioner with a reduction in staff

Usually, it is working pensioners who are laid off. Dismissal of a working pensioner on this basis occurs on a general basis. The order is as follows:

• the employer is obliged to notify the employee two months in advance. The notice must be in writing and the employee must sign the receipt;
• an order is issued for the enterprise, and changes are made to the staffing table. Downsizing as an opportunity to "get rid" of pensioners is not legitimate! The schedule must be changed, and the position occupied by the pensioner must be reduced;
• often the employer prescribes in the employment contract with the pensioner a number of benefits that they have with work experience at this enterprise for more than 20 - 25 years. As a rule, this is the pre-emptive right to leave the workplace. But this is the employer's right, not his duty. If this condition is spelled out in the employment contract, then the employer is obliged to comply with it;
• the pensioner is offered in writing another position, which is not subject to reduction;
• if he does not agree to any of the proposed positions, this is the basis for the termination of the employment relationship. Resignation from the post is also made in writing;
• the pensioner is paid all benefits and compensations provided for by the Labor Code of the Russian Federation in case of staff reductions:
  • wages for the hours actually worked;
  • compensation for unused vacation, if any;
  • allowance for the first two months after dismissal, as well as for the third (if necessary);

Dismissal due to retirement

A pensioner has the right to quit his job when he reaches retirement age. For men in Russia, it is set at 60 years old, and for women - 55 years old. In some cases, it is possible to retire early.
An employee can only quit on this basis once in a lifetime. The record "dismissal due to retirement" will be made in the work book. In this case, the application for dismissal can be submitted even one day before the expected date of dismissal. In the application, you need to write the reason - "retirement" - and the date of leaving the job. The employee writes a corresponding statement, and the employer draws up the corresponding order. The employee will be paid all benefits due on the next payday.

Payments and compensation

If a pensioner leaves of his own free will, by agreement of the parties or upon retirement, the employer must pay him:

• wages for the hours actually worked in the month in which the employment relationship is terminated;
• compensation for unused vacation, if any, in the current working year;
• additional benefits at the discretion of the employer.

If a pensioner leaves due to staff redundancy or upon liquidation of an enterprise, then the employer pays him:

• wages for the hours actually worked;
• compensation for unused vacation, if any;
• allowance for the first two months after dismissal, for the third - if necessary;
• additional benefits are paid at the discretion of the employer. The law does not provide for this.
• if the pensioner carried out his labor functions in the regions of the Far North or in areas with a similar status, then the allowance is paid for a period of up to six months.

There are times when the amount of the benefit can be reduced:

• work of a pensioner in seasonal work;
• his refusal to transfer to a permanent job at another enterprise, by agreement between employers.

Work on dismissal

All the terms of the due working out are spelled out in clause 3 of Art. 80 of the Labor Code of the Russian Federation. Does a pensioner have to work out the due date?
If an employee leaves on the basis of retirement, then he has the right to receive a payment on the same day on which he writes a statement indicating the reason for the dismissal. But most often the employer calculates such an employee on the day of payment of the next wage, having agreed on this with the retired pensioner. At the same time, you do not need to work out the prescribed two weeks. To avoid misunderstandings on the part of the accounting department, it is advisable to inform about your desire to terminate the employment relationship on the day of retirement in advance.

If a working pensioner indicates in the application such grounds as “I ask you to dismiss me of my own free will, as a working pensioner,” then the term of work is 3 days. If the application only indicates the employee's request to fire him on his own initiative, and there is no reference to the retirement age, then the dismissal is carried out on a general basis. That is, the term of work is two weeks.
If there is a reduction in staff, then the working pensioner has the right to quit earlier than the rest of the employees. However, it is necessary to reach an agreement with the employer.
The agreement is made in writing and signed by both parties. One copy remains with the employer, and the other - with the pensioner.