Hiring a pensioner. Who do we notify and when?

• October 25, 2018
• Labor law
• Marina Lobacheva

Dismissal is an unpleasant process that involves terminating the employment contract drawn up between the management of a particular enterprise and the employee. It can be carried out at the request of the employee directly, in connection with staff reduction or liquidation of the company, as well as when the employee commits disciplinary offenses. The dismissal of a pensioner has some peculiarities, but such employees have all the standard rights and responsibilities under the Labor Code of the Russian Federation. Therefore, such an employee can be dismissed only if there are compelling reasons.

Legal requirements

Many company executives are trying to get rid of workers who are at retirement age. This is due to the fact that sometimes such employees cope worse with basic job responsibilities compared to young specialists.

Since 2020, significant adjustments have been made to the pension system, therefore the retirement age is increasing by 5 years for all citizens. It is allowed to receive a pension before reaching this age, for example, if a citizen registers for some type of disability or a pre-retirement pensioner cannot find a job for a long time, including with the help of an employment center.

Even upon reaching retirement age, a citizen does not lose his right to work, therefore employers do not have the right to dismiss citizens without good reason. But we often have to deal with the fact that businessmen ignore the requirements of the law, and therefore deliberately fire people in old age, replacing them with younger specialists.

The basic rules regarding the dismissal of a pensioner are contained in the following regulations:

• Art. 80 and 81 TK;
• Federal Law No. 400;
• Federal Law No. 173.

Pensioners have all the standard labor rights that other official employees of different companies have. Therefore, termination of cooperation with them should be carried out only if there are compelling reasons.

Working pensioner - to retire: when it is legal and when it is not

Many retirees prefer to work after retirement. In some cases, the employer has the right to terminate their employment contract, and in some cases not. Because pensions are different.

C situation. A man aged 56 years was dismissed under clause 7 of part two of Article 100 of the Labor Code (LC), i.e. on the basis of reaching retirement age and having the right to receive a state old-age pension in accordance with the law. The employer considered it possible to terminate the employment contract on this basis, because the employee is already a pensioner under benefits in accordance with List No. 1, approved by resolution of the Cabinet of Ministers dated May 12, 1994. No. 250. However, this employee retired on a preferential pension several years ago, continued to work and has not yet reached the age of 60. Did the employer have the right to dismiss on this basis? What responsibility does a manager have in case of violation of an employee’s labor rights?

LAWYER'S COMMENT

Legality of termination of an employment contract

Resolution of the Cabinet of Ministers dated May 12, 1994 No. 2501 approved three lists of industries, institutions, jobs, professions and positions that give the right to a preferential pension (subject to the required general and special work experience):

List No. 1 - regardless of age ;

List No. 2 – with a reduction in the generally established age by 10 years ;

List No. 3 – with a reduction in the generally established age by 5 years .

In this case, the man retired according to List No. 1 of industries, institutions, jobs, professions and positions that give the right to a pension regardless of age , subject to the required general and special work experience. The very name of the document indicates that this preferential pension is applied regardless of the citizen’s age, but in connection with the performance of special work to a certain extent.

Clause 7 of part two of Article 100 of the Labor Code, on the contrary, is inextricably linked with the age of the employee, since it directly states: the employee has reached retirement age if he has the right to receive a state old-age pension in accordance with the law.

Therefore, in paragraph 13 of the resolution of the Plenum of the Supreme Court No. 18 dated November 13, 20152 (in Uzbek) it is explained that “when considering these categories of cases, courts should pay attention to the employee reaching retirement age if he has the right to receive a state old-age pension in in accordance with the law.

In accordance with Article 7 of the Law “On State Pension Provision of Citizens”, the following have the right to receive an old-age pension:

men - upon reaching 60 years of age and with at least 25 years of work experience;

women - upon reaching 55 years of age and with at least 20 years of work experience.”

Consequently, the employer did not have the right to terminate the employment contract with an employee who had not reached 60 years of age (i.e., the generally established retirement age) on the grounds that he was already a pensioner on the preferential list. This clarification applies not only to List No. 1, which gives the right to a pension regardless of age, but also to Lists No. 2 and 3, which give the right to a pension with a reduction in the generally established age by 10 and 5 years.

Thus, it is illegal to terminate labor contracts with employees under clause 7 of part two of Article 100 of the Labor Code if they have not reached the age specified by law for receiving an old-age pension: men - 60 years; women – 55 years old.

How will the manager be responsible for this?

As a general rule, violation by an official of labor legislation entails the imposition of an administrative fine from 2 to 5 minimum wages (part one of Article 49 of the Code of Administrative Responsibility).

In the case of a deliberately illegal dismissal or failure to comply with a court decision on reinstatement, committed after the application of an administrative penalty for the same acts, the responsible official is punished with a fine of up to 25 minimum wages or deprivation of a certain right or correctional labor for up to three years (Article 148 of the Criminal Code).

In some cases, bringing to administrative responsibility, and even more so criminal, also entails disciplinary liability, including termination of the employment contract with the manager himself, who is guilty of illegally dismissing the employee.

There is also financial responsibility of the manager according to labor legislation. Thus, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work (Article 188 of the Labor Code). If an official causes harm to the employer related to the payment of wages to an employee with whom the employment contract was illegally terminated, the court imposes the obligation to compensate for the harm caused on this official. Such an obligation is imposed if the termination of the employment contract was carried out in obvious violation of the law or if the official delayed the execution of the court decision on reinstatement at work. In this case, the amount of compensation for damage cannot exceed three monthly salaries of the official (Article 274 of the Labor Code).

Lawyer recommends

However, fines and punishment of a manager who wrongfully terminated an employment contract with an employee do not bring any tangible benefit to the latter (although they should also exist to prevent violations in the future). At the same time, it is usually a much higher priority for the employee to be reinstated in his previous position and receive payment for forced absence.

In order to be reinstated in your previous position, it is advisable to immediately go to court with a corresponding claim. The reason is that for this category of cases a special limitation period has been established - only one month from the date the employee was given a copy of the order to terminate the employment contract with him (part one of Article 270 of the Labor Code). Therefore, when turning to other organizations, dismissed workers risk missing this deadline, which subsequently leads to a court decision to refuse reinstatement - and only on the grounds that the statute of limitations has expired. On the merits of the issue, the employee may be 100 percent right, but the defendant (employer), declaring that the statute of limitations has expired (Article 153 of the Civil Code), often wins this process on a formal, essentially, basis.

A significant positive point is the exemption from paying state duty when filing a claim in court regarding a labor dispute (Article 277 of the Labor Code, clause 1 of Article 329 of the Tax Code).

In addition, going to court does not deprive the employee of the right to simultaneously file complaints with other competent authorities (superior organization of the employer, trade unions, prosecutor's office, main department of labor and social protection of the population).

Zumrad NIYAZMETOVA, lawyer.

Publications on the topic:

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Help Desk “We Answer!”: Retirement in Questions and Answers

1 Resolution of the Cabinet of Ministers “On approval of lists of industries, institutions, works, professions, positions and indicators giving the right to a pension on preferential terms” dated May 12, 1994 No. 250.

2 “On introducing amendments and additions to some decisions of the Plenum of the Supreme Court of the Republic of Uzbekistan.”

What rights do pensioners have?

All people of retirement age can enjoy standard labor rights enshrined in numerous articles of the Labor Code. Therefore, dismissal of a pensioner at the initiative of the employer is possible only if there are valid reasons for this.

Additionally, retirees can enjoy some privileges that other enterprise employees do not have. These include the following:

• if a person has reached retirement age, he can refuse further work, but this is not a basis for forced termination of the employment contract;
• a citizen can annually take out an extraordinary leave lasting 2 weeks, but his earnings are not retained;
• the pensioner can expect to receive another position in the company;
• It is permissible to reduce the working day for a citizen, but for this there must be appropriate medical indications.

A citizen has the right to quit his job at any time. Can a pensioner resign without working? Employers cannot require such persons to work for two weeks.

Labor benefits

If an employee continues to work upon reaching retirement age, he retains all labor rights and bears the same responsibilities as his colleagues, but in addition he receives several benefits.

Expert opinion

Salomatov Sergey

Real estate expert

Disabled people have the right to receive additional benefits and allowances, which are also determined by federal and regional legislation. For example, you can find out about benefits for disabled people of group 2 here.

All these rights are enshrined in the Labor Code, i.e. there is no need to sign an additional agreement between the employee and the employer.

To receive it you must present:

• passport;
• pensioner's ID;
• an application drawn up on the employer’s letterhead or in free form.

Leave at your own expense is granted at any time, upon the first request of the applicant. In this case, its duration can be 14 days at once, or the pensioner can receive several vacation periods (for example, 2 times a year for 7 days).

As for the termination of the employment relationship without compulsory 14-day work, in this case the dismissal will be carried out by agreement of the parties. In this case, the employee draws up a corresponding statement and can be considered dismissed (receive a paycheck and work book) from the next working day.

Expert opinion

Salomatov Sergey

Real estate expert

Previously, we talked about how to receive a lump sum payment from the funded part of your pension; we advise you to read this information here.

Dismissal at the initiative of a pensioner

If a retired employee decides to stop working, the head of the company has no right to create obstacles for him. Can a pensioner resign without working? The Labor Code actually secures the right of such citizens to leave the company without any work. But if there is a good relationship between the two parties, then it is advisable to notify the director in advance of the planned departure.

Most often, the lack of processing is associated with the following nuances:

• A citizen has the right to leave without working time only after he is awarded a pension;
• a pensioner can retire not only due to old age, but also due to disability;
• A citizen can exercise the right to resign without service only once.

If a person already retired changes several places of employment, then he can only resign once without working off. In other situations, he will have to notify the employer of his planned departure two weeks in advance, and then work at the company during these 14 days.

Nuances for financially responsible persons

If a pensioner is a financially responsible person, then even if he has the appropriate status, he will not be able to leave the company without working. This is because he needs to transfer all the valuables to another designated employee. Additionally, companies often conduct an inventory to identify theft or other violations.

Therefore, if the employee is a financially responsible person, then even if he is a pensioner, he will have to stay temporarily in the company.

How does voluntary dismissal occur?

The rights of working pensioners are the same as those of other employed citizens. If a person wishes to stop working in any company, then he follows standard actions:

• a statement is generated that may not contain a reason for terminating the contract;
• this documentation is transferred to the personnel service of the enterprise;
• the application indicates exactly when the citizen will leave the company, and he can even choose the next day for this;
• on the appointed day you must come to the HR department to receive a work book;
• In the accounting department, all due payments are paid to the citizen.

In the process of drawing up the application, the citizen’s full name, his position in the company is indicated, and it is also advisable to indicate the reason for leaving the company, represented by retirement. At the end there must be the date the document was drawn up, as well as the signature of the citizen.

Are benefits available to working pensioners?

Approximately 15 million Russian pensioners continue to work after retirement. This is due, first of all, to the low amount of pension payments. Many people mistakenly believe that if a citizen who has reached retirement age continues to work, he has no right to count on any benefits provided to pensioners who are not working. However, it is not. Retired working persons retain a certain set of privileges.

Is it possible to dismiss a pensioner at the initiative of the employer?

If the head of a company wants to get rid of an employee who is a pensioner, then he must have really good reasons for this. It is impossible to terminate a contract simply because the employee has reached retirement age.

If an employee stops coping with his duties, can the pensioner be fired? In such conditions, it is important to issue confirmation that the citizen is not suitable for the position held. Often, even with the correct paperwork, pensioners turn to the labor inspectorate and the court to challenge the employer’s decision. This often results in the firm and its management being held accountable.

When can the head of a company fire a retired employee?

Dismissal of pensioners under the Labor Code of the Russian Federation at the initiative of the employer is possible only in the following situations:

• liquidation of the organization where the citizen worked;
• staff reduction;
• as a result of the certification it is confirmed that the employee is indeed not suitable for the position held;
• after passing a medical commission, it turns out that the health of the hired specialist does not allow him to continue working in the company;
• the specialist commits disciplinary offenses, for which not only a reprimand or reprimand can be given, but also dismissal can be applied.

If a pensioner ceases to cope with his main responsibilities, then the employer often offers him a transfer to another position in the company. This requires the direct consent of the employee. This usually results in a demotion and a pay cut.

Dismissal due to poor health

The law on the dismissal of pensioners allows for forced termination of a contract with such an employee if there is a certificate from a medical institution stating that the person cannot continue to work under certain conditions. This is usually due to the presence of chronic diseases or serious injury.

Under such conditions, the employer can begin the procedure for dismissing the citizen. To do this, the following nuances are taken into account:

• the employer must have a medical report that provides information about the presence of illness in an employee of the enterprise;
• this document must contain a comment regarding the citizen’s ability to work;
• if the company has a vacant position, in which the pensioner will be able to continue working, then such a vacancy will be offered to him, but the transition is possible only voluntarily, so the employee must give written consent;
• when transferring, only in the first month the citizen retains his average earnings, and after that the salary can be reduced;
• if the pensioner does not agree with the transfer, then he is dismissed on the basis of relevant medical indications.

After the dismissal of a working pensioner, the pension is recalculated, so the citizen can count on high payments from the state.

Pros and cons of working after retirement

People who have not accumulated work experience during their lives and cannot receive an insurance pension from the state can apply for old-age social benefits, namely:

1. Women over 60 years old and men over 65 years old, if there is no required amount of experience.
2. Citizens of small northern peoples aged 50 and 55 years (for women and men).

In 2020, the amount of such a pension was 5334.19 rubles .

If the entire amount of pension provision is below the subsistence level in the region of residence of the pensioner, then in addition to the social pension, a social supplement to the pension is also made.

Social benefits cannot be assigned if the pensioner does not reside permanently in the territory of the Russian state or continues to work.

Staff reduction

Can a pensioner be fired from work due to staff reduction? If a company, for objective reasons, needs to reduce the number of employees, then even the contracts with retirees may be terminated. It is these individuals who are most often laid off, as they are considered the least valuable employees for various enterprises.

There are no restrictions in the law on the dismissal of such workers. According to Art. 179 of the Labor Code, when selecting workers to be laid off, it is required to take into account their experience, qualifications, skills and other parameters, but often employers deliberately get rid of elderly employees.

The procedure for dismissing pensioners during staff reduction is standard:

• the pensioner is notified of the reduction 2 months before the appointed date, for which he must receive a written document and also sign in a special act;
• information about laid-off employees is transferred to the regional employment center;
• the head of the enterprise issues an order on the basis of which changes are made to the staffing table, and all laid-off employees must familiarize themselves with this document against signature;
• if possible, citizens are encouraged to move to another position in the company;
• on the appointed day, the employment relationship is terminated.

On the last day of work, the citizen receives a work book and the required payments. Compensation for the dismissal of a working pensioner due to layoffs is paid only once. Since a citizen receives a pension from the state, he will not be able to count on severance pay paid within three months, even if he fails to find a new place to work.

Drawing up an agreement between the parties

This option for dismissing a pensioner is considered the softest and most convenient for each participant in the process. Employers often use this method if they cannot forcefully fire a citizen using other methods. The process has the following features:

• based on the agreement, a citizen can receive significant compensation, which covers all his costs of finding a new job;
• the company's management can get rid of an employee who is not able to bring benefits to the company due to his age or other parameters;
• the consent of the employee to draw up this document is required;
• a citizen can demand other concessions from the employer if necessary.

Do pensioners work 2 weeks upon dismissal? According to the law, citizens can refuse this, and often it is the agreement of the parties that states that the employee may not work the required two weeks.

What payments are given?

If a person of retirement age resigns, he can still demand all due payments from the head of the enterprise. These include the following listings:

• salary, which is calculated depending on the amount of time the citizen worked in the company;
• severance pay for a month of work;
• vacation compensation.

If a citizen is dismissed on the basis of an agreement drawn up with the employer, then he can count on other types of payments. After the dismissal of a working pensioner, the pension is recalculated, so payments from the state increase additionally.

Shortened working hours

By agreement with the employer, additional benefits may be provided to working pensioners in the form of a shortened working week or working day. Of course, this is not mandatory for the employer, but the Labor Code of the Russian Federation lists certain categories of citizens at whose request the organization’s management can make such concessions. For example, these include persons who care for a sick, disabled family member, for which a medical certificate issued in the prescribed manner is provided.

What to do if an employer coerces an employee?

Often employers really want to forcibly get rid of an employee who is a pensioner. Although management does not have the legal rights to do this, the administration still often forces citizens to write a letter of resignation of their own free will. Under such conditions, the labor rights of citizens are violated. Therefore, the following recommendations are taken into account:

• the employee must comply with labor discipline in the company so that the director cannot bring him to disciplinary action;
• if fines or other types of punishment are applied to a citizen, then copies of accompanying documents must be made;
• if an employer requires a specialist to perform work that is not provided for in his job description, then it is important to obtain testimony from witnesses and other evidence of the employer’s unlawful demands;
• if a citizen is a member of a trade union organization, then it is advisable to contact this institution to obtain protection;
• if the employer really violates the labor rights of a pensioner, then he can file a corresponding complaint with the labor inspectorate or the prosecutor’s office;
• if a citizen is fired illegally, then he can challenge such a decision of the head of the company, for which he files a lawsuit in court.

When going to court, it is important to prepare as much evidence as possible that the citizen is right. To do this, you need to prepare audio recordings, photographs, documents, witness statements and other evidence.

Dismissal

If a pensioner decides to leave work, he has the same rights as other citizens. Since the Labor Code does not provide for an article on termination of an employment contract related to retirement, the reason is usually formulated as voluntary dismissal. In the event of a layoff, the pensioner also retains all rights. He is entitled to a severance payment in the amount of his average monthly earnings, while he retains payments equal to his average monthly earnings for two months.