How to retire an employee. Dismissal of a pensioner at the initiative of the employer. Legislative framework regulating the dismissal of pensioners

A retired person has a number of benefits and advantages compared to the population who have not achieved this status. The natural process after the onset of pension rights is the cessation of occupations related to professional activities, but due to a number of factors, the employee is in no hurry to release his workplace. The employer faces the problem of how to fire a pensioner without his desire. According to the law, this is not so easy to do.

Legal grounds

It should be noted right away that there are no legal grounds to fire a retired employee if he does not want to quit because he has reached retirement age. That is, a person’s age is not an indicator, and if a pensioner refuses to resign voluntarily, it will not be possible to calculate it.

IN Labor Code The following points can be highlighted, guaranteeing benefits to persons of retirement age:

Thus, people of retirement age have the same rights and obligations as other categories of employees.

Termination of agreements occurs in accordance with general principles. But it should be noted that the obligation to work for a two-week period after filing an application does not apply to a pensioner only if he resigns for the first time. Therefore, it is legal to fire such an employee possible in three ways:

according to at will;
by agreement of the parties;
at the legal initiative of the employer.

Conflict-free dismissal

Previously, the Labor Code specified a rule according to which it was possible to dismiss a pensioner from work without his consent upon reaching a certain age. But since 1995, changes have been made to the law prohibiting this. A conflict-free situation for the employer would be an attempt to persuade such an employee to write a statement of his own free will or by mutual agreement of the parties.

To do this, you can try to negotiate additional severance pay or give the opportunity to work for a certain time.

By consent, termination of the contract occurs as standard, as for any staff employee. The person writes a statement, as with an ordinary dismissal, but he is not required to indicate the reason. The wording in the documents of a reason such as “in connection with retirement” will be incorrect, since these factors cannot be related to each other. However, in the application it will be necessary to note that its author is a pensioner who, according to an article of the Labor Code, is exempt from mandatory service.

No compromise

The status of a pensioner does not indicate the immunity of the employee, so he can also be dismissed at the initiative of the employer. There are quite reasonable reasons for this. Most common articles the following apply:

Regardless of the article of dismissal, the employer is obliged to comply with all legal requirements.

For example, compensate for missed vacations and pay for sick leave. But in any case, forcing a person to write a statement of his own free will is illegal and may be grounds for going to court to restore justice.

Violation of labor obligations

Dismissal related to such grounds depends on the fulfillment of the labor obligation undertaken by the pensioner, or more precisely, on its non-fulfillment. In order to legally pay a person, it will be necessary to record all the employee’s violations by issuing reprimand orders. The reason for such reprimands may be:

Typically, dismissal under such an article requires a systematic violation, but is not necessary.

A systematic violation is one that was repeated by an employee within a year after the first reprimand was issued for the same action. Dismissal will be considered legal only if the employee’s fault is established. That is, it is unacceptable to dismiss or even reprimand if the accused had valid reasons that led to a violation of labor discipline or his duties.

When a reprimand is issued, an order is issued, which is given to the employee for review and signature. The order must be communicated to the employee within three days from the date of its publication. If a working pensioner refuses to sign, then an act is drawn up indicating such refusal. In this case, at least two witnesses must sign the act.

It is possible to terminate an employment contract by decision of the employer or its representative body due to a reduction in the number of workers. But at the same time, there are provisions provided for by the Labor Code that cannot be violated. There are certain categories of workers who are entitled to benefits for maintaining a job position when staffing is reduced. This category includes employees who have higher qualifications or are highly productive. In the case of identical conditions, they are taken into account when making a decision the following factors:

All these points are taken into account only when reducing the number of work units, when the position itself is not removed from the staff. If the position itself is abolished, then these conditions do not apply.

Due to downsizing at the enterprise, the employer has the right to dismiss a pensioner without his consent, but this dismissal must occur without violating the general procedure. The employee must be warned about the upcoming layoff at least two months in advance by a special order, after reading which he must sign it. The employer is obliged to offer vacant positions to the redundant employee both at the time the order is issued and those that appear within two months.

Upon dismissal due to staff reduction The following provisions must be observed:

A pensioner, like any employee, cannot be counted while on any type of vacation or sick leave.
When an employee is a member of a trade union, then in order to terminate the employment contract with him it is necessary to coordinate the dismissal with his managers. If, when dismissing an employee, the union does not respond to the employer’s request within fifteen days, then it is automatically considered that this permission has been received.

An employee who has been laid off, according to the Labor Code, must receive not only severance pay equal to his average monthly earnings, but also the average monthly salary, compensating for the time spent in a new place of work (no more than two months from the date of calculation). Although it is also possible to receive benefits for the third month, this will require a decision from the employment center.

There is also the possibility of early dismissal of a pensioner in case of staff reduction, without waiting for the required two months, but in this case all guarantees must be observed. An early agreement must be recorded in writing. The employer is obliged to terminate the employment contract without waiting for two months if the employee has found a new place of work and wishes to terminate the employment relationship immediately.

Inconsistency with the position held

Everything in this world is developing and sometimes an elderly person does not keep up with technical developments in one or another area of work. It becomes difficult for him to complete the tasks assigned to him. Therefore, a completely legal basis would be the dismissal of a pensioner due to his inadequacy for the position held or insufficient qualifications.

But you cannot simply declare a person unable to cope with the work assigned to him. For this purpose, the Labor Code has such a concept as certification. It means checking the level of knowledge, skills, abilities, and prospects.

The certification procedure is legally defined only for certain workers, for example, civil servants, teachers, and for the rest, employers must themselves develop standards and requirements. The specific time for certification is not specified in the law, so it can be scheduled either scheduled or unscheduled. The qualification exam is conducted by an appointed commission with or without the participation of outside specialists. Based on its results, the certification commission makes a personnel decision.

The article regarding dismissal for health reasons stands out. To do this, you will need to obtain an appropriate conclusion from a clinical expert commission. medical institution. The employment agreement can be terminated if the employee is recognized by the commission as completely incapacitated or his health condition does not allow him to perform his work conscientiously, and also if the work he performs may lead to accidents. At the same time, there is an article in the Labor Code prohibiting the dismissal of an employee during illness, unless the enterprise itself is liquidated.

Malicious disciplinary violation

The basis for terminating an employment contract with a pensioner may be a gross violation of labor discipline. First of all, this is truancy. It is considered the absence of an employee from the workplace without a valid reason for more than three hours a day. Such a fact must be documented using an act and obtaining an explanation from the employee for his absence.

Articles of the law do not oblige to warn an employee about his dismissal in case of absenteeism or other serious violation. But since the employer must receive an explanation from the absentee, it is impossible to fire him on the same day, but at least two days must pass.

An equally serious violation of discipline is the appearance of an employee at the workplace while intoxicated. In this case, the employer can, on its own initiative, legally dismiss the working pensioner the next day, suspending him from work on the day of discovery. For dismissal on this basis necessary:

appearance of an employee in a drunken state during the working day;
the employee’s condition must be established and confirmed by a medical report;
If a worker refuses to carry out the examination, his condition may be confirmed by several witnesses.

So, you need to know that if a pensioner is offered to resign because she has reached a certain age, then this will be illegal and can easily be challenged in court. At the same time, there are a number of legal reasons that allow you to dismiss an employee without his consent. This is due to the fact that a retired worker in his rights and responsibilities is no different from an ordinary employee.

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Workers whose age is already approaching retirement are increasingly beginning to wonder: how does a pensioner quit his job? After all, after retirement, a person begins to think about what he should do now.

Many people who have reached retirement age still feel strong for a long time continue active work. Some are forced to earn extra money because their meager pension is not enough to live on. The law allows a pensioner to continue working while receiving wages and a pension.

Some employers, not wanting to keep a working pensioner at their enterprise, begin to infringe on his rights. In order not to fall for this bait, every employee of retirement age should know his rights as prescribed in the Labor Code of the Russian Federation.

Each business entity that employs pensioners must, when dismissing them, be guided by the following articles of the Labor Code in force in the territory Russian Federation: 77, 81, 83, 84.1.

Important! It is worth noting that if individual, officially employed in a commercial organization or with an individual entrepreneur, reaches retirement age, then this fact is not grounds for his dismissal.

He will hold his position as before, but if he wishes, he can leave his job and retire.

Pensioner's rights

Federal legislation protects people of retirement age from unlawful actions on the part of management. If the boss wants to dismiss such an employee on his own initiative without receiving his consent, then his actions will be considered a violation of labor laws.

In such a situation, the pensioner will be able to file a complaint with the labor inspectorate or judicial procedure be restored to your previous position. Legislation also allows people of retirement age to resign at their own request without mandatory two-week work.

Moreover, such employees can submit an application even while on vacation or sick leave. This category of workers should be provided with additional vacation at a time convenient for them.

When can a working pensioner be fired?

Let's look at the rights of a working pensioner and figure out what the features of indexation of pension accruals are.

Dismissal of a working pensioner may occur for the following reasons:

Dismissal at will
Initiation of termination of an employment contract by the employer
Staff reduction

The competent authorities of our state are engaged in protecting the interests of an illegally dismissed pensioner. Legislation on the regulation of legal relations with pensioners:

Labor Code of the Russian Federation. Article 197-FZ. Accepted 12/30/2001
Federal Law No. 173-FZ, December 17, 2001 “On labor pensions in the Russian Federation”
Federal Law No. 400-FZ, December 28, 2013 “On insurance pensions”
Federal Law No. 424-FZ, December 28, 2013 “On funded pensions”
Federal Law No. 166-FZ, December 15, 2001 “On State pension provision in the Russian Federation"

The law includes citizens who are subject to compulsory pension insurance and who continue to work as a working group of pensioners:

Persons with a concluded employment contract or civil agreement
Entrepreneurs who have registered their status for profit
Notaries, lawyers, other private practitioners
Peasant farm participants
Persons working abroad paying insurance premiums
Clergy, etc.

Labor Code on the rights of a working pensioner

Registration of a pension is not considered a basis for depriving a person of the right to work granted by the Constitution and other legal acts.

A working pensioner is considered an ordinary employee with all the rights and responsibilities, and the general rules of dismissal apply to him along with other full-time employees.

Age restrictions are provided only for certain categories of workers, for example, some government employees.

The Labor Code of the Russian Federation and other laws provide the following rights for retired citizens:

Continuation of work activity with appropriate professional suitability
Dismissal of a pensioner at will, not under duress
Protection from unlawful actions of superiors in accordance with the prohibition of discrimination against a person based on age. Removal from office is clearly established on the basis of the Labor Code of the Russian Federation
Possibility to work part-time
Prohibition of refusal of employment
Payment sick leave on general terms
Setting part-time or week
Maintaining the advantage of remaining on staff due to layoffs. Accumulated knowledge and long experience must be taken into account when choosing an employee who will continue to work
Receiving annual paid leave and additional - at your own expense for 14 days
No obligation to work off in connection with the dismissal of a pensioner from work on his own initiative. It is not necessary to notify the directorate in advance. You can quit any day
Additional benefits established by the collective agreement
Calculation of pension without material restrictions
Additional tax and social benefits

How does a working retiree get fired?

The reasons are identical with other employees, the strict procedure for dismissing pensioners, the entire process and grounds are determined by law.

It is important to know that there has recently been some change in the legislative framework.

Important! For working pensioners, from January 1, 2016, the annual increase in pension amount was cancelled.

Indexing is suspended until the end of employment.

After the employee resigns, a new calculation will be made to him, and the amount of pension accruals will be indexed in full for the entire previous period.

Any person sooner or later decides to retire; the reasons for dismissal are varied, but, as a rule, it is deterioration in health.

Dismissal of a pensioner of his own free will occurs as follows. To terminate an employment contract, an employee submits a written application outlining a request for dismissal.

The wording “at one’s own request” is sufficient, and the mark “pensioner” makes it possible to leave on any day without working.

The person resigning signs a bilateral agreement with the employer to terminate legal relations. It is absolutely not necessary to put in work book marked “due to retirement.”

Upon dismissal, the former employee is given a full payment, a 2-NDFL certificate and other documentation.

Forcibly dismissing working pensioners is possible only in accordance with Art. 81 of the Labor Code of the Russian Federation, which provides a strict list of reasons for terminating legal relations with an employee.

Grounds giving the employer the right to dismiss:

Liquidation of the employer's legal entity
Reduction of staff
Truancy
Insufficient qualifications
Repeated failure to fulfill duties according to job description without good reason
Violation of confidentiality agreement
Committing embezzlement, theft, intentional damage to property, etc.

A pensioner can be transferred to more simple work within the organization, but only with the consent of the employee in accordance with his application.

The transfer to a new location must be formalized in accordance with the contract.

A reduction in staff can also lead to the dismissal of a pensioner.

Some companies are trying to get rid of retirees under the pretext of layoffs, but certain rules have been established for this procedure.

The Directorate issues an order justifying staffing optimization, and changes are made to the staffing table.

At the stage of selecting candidates for dismissal, a commission is created that analyzes lists of employees, applying the rules on the right of preferential retention of employees with the highest qualifications, as well as taking into account additional guarantees provided for in the collective and labor agreements.

After 2 months and in the absence of other vacant positions, the pensioner resigns. Cash settlement is made, compensation and severance pay are paid.

Protecting the interests of an illegally dismissed pensioner

The Labor Code provides guarantees and arguments for protecting their interests to pensioners.

The dismissal of pensioners is subject to clear criteria; the employment contract is terminated solely on the grounds specified in Articles 77-84 of the Labor Code of the Russian Federation; in other cases it will be illegal. For the fired the best option There will be a peaceful resolution of the conflict through negotiations.

It is also necessary to submit a written claim in 2 copies, correctly stating the reasons for not wanting to quit, your requirements and legal justification.

In case of illegal dismissal of a working pensioner, the victim has the right to contact the following authorities:

Trade union
Labor Inspectorate
World Court
Prosecutor's office

The period for appealing the employer's decision is 1 month. After this time, an employee who previously worked in the organization will not be able to prove a violation of his rights, or this will be a complex process.

Important! It is necessary that the parties to labor relations conscientiously comply with all procedural issues, dismissal from work occurs within the legal framework, and payment is made without delay.

In order to provide general information, the main features of the dismissal of pensioners were disclosed above. If you lack knowledge, you can always seek legal advice.

The procedure for dismissing a pensioner at his own request

Dismissal of a working pensioner at his own request occurs in general procedure based on the application. The employee is not required to indicate the reason, as with a regular dismissal of his own free will. The wording of the form “due to retirement” seems incorrect and redundant, since the fact of dismissal and the status of a pensioner are not related to each other.

However, the application should indicate that its author is a pensioner, who, on the basis of Article 80 of the Labor Code of the Russian Federation, should be exempted from working two additional weeks.

The work book may (but not necessarily) indicate the reason for dismissal in the form: “Dismissed at his own request due to retirement age/retirement.”

Step by step instructions

The process of dismissing a pensioner from his position is as follows:

Initially, a full-time employee must write an application addressed to the head of the organization
The application is reviewed by the boss and written in the upper left corner “Dismiss from.... numbers" and puts his signature
The document is sent to the HR department. If the organization does not have a personnel department, then its functions are performed by the accounting department
Based on the application endorsed by the manager, an order is issued, which is handed over to the pensioner for review.
After this, the authorized employee makes the appropriate entries in the pensioner’s personal card
Final financial settlements are made with the resigning employee.
The pensioner is given a work book with the corresponding entry, as well as a certificate of average salary and other documents upon request.

How to fill out an application

A working pensioner who has expressed a desire to leave his position must notify the company management of his intentions. To do this, he needs to write an application and submit it to the secretary, accountant or personnel officer for registration.

The boss must read the application and endorse it, after which the document is sent to the personnel department to process the dismissal papers.

A pensioner can write a statement in free form, but he must adhere to certain rules:

In the upper right corner is written the name of the organization and the full name of the director. The next line indicates the full name of the employee, as well as his identification number
Having retreated a few lines in the center, the individual must write “Application”
A text is written every other line in which the reason for leaving should be indicated, as well as the exact date of dismissal. For example, “I ask you to voluntarily dismiss me from my position on December 8, 2017”

With and without processing

If a full-time employee of retirement age decides to resign at his own request due to retirement, then in this case the procedure will be carried out according to the standard scheme.

The only difference will be that the pensioner does not need to work for two weeks. This procedure is regulated by Article 80 of the Labor Code of the Russian Federation.

The head of the organization is obliged to dismiss the pensioner on the day he indicated in the application. There is one in this question important nuance. If the employee indicates that “I ask you to dismiss me as of 12/08/2017,” then the dismissal date will be 12/09/2017.

If the statement contains the wording “I ask you to fire me on December 8, 2017,” then the head of the organization is obliged to carry out this procedure exactly 12/08/2017.

In the case where an employee of the organization previously resigned due to retirement, but then returned to his previous position as a pensioner, then upon dismissal of his own free will, he will have to work for two weeks.

But, if personal agreements are reached between the employee and management, then such a pensioner will be able to resign without the mandatory two-week work period.

If a business entity illegally forces a retiring pensioner to work for two weeks, the employee can complain to the labor inspectorate, which, after an inspection, will apply penalties to management:

Individual entrepreneur – 1000-5000 rubles
Commercial organizations – 30,000-50,000 rubles
Company officials – 1000-5000 rubles

Dismissal of a working pensioner due to staff reduction

To dismiss a pensioner during a reduction in staff, it is necessary to comply with all general procedures preceding the reduction in accordance with labor legislation, regardless of the age of those being dismissed:

At the enterprise, in relation to the units proposed for reduction, a part-time or weekly working day must be established
There should be a formal reduction in staffing levels
The commission involved in the reduction must analyze the lists of employees to identify categories that have a preferential right to be retained at the enterprise. First of all, these include qualified personnel. In addition, collective and labor agreements may establish additional guarantees: for working pensioners, for employees who have worked at the enterprise for over 25 years, etc.
A pensioner whose position has been laid off must be offered the option of moving to another position.
A working pensioner must be officially notified of the upcoming layoff at least two months in advance

Payments and compensations due to a pensioner upon dismissal

When a working pensioner is dismissed, payments are made on a general basis, which include:

Salary for days actually worked in the last month
Compensation for days of unused vacation in the current working year

Compensation for vacation days is calculated based on the pensioner’s average daily earnings, calculated for last year using the average number of working days per month equal to 29.3. Moreover, each month worked in the current working year is equivalent to 2.33 days of vacation. The resulting number of vacation days should always be rounded up.

If the dismissal of a pensioner occurs due to staff reduction or liquidation of the organization, then the following is added to the listed payments:

Severance pay for the first month after dismissal
Compensation for inability to find employment in the 2nd and 3rd months after dismissal

For some categories of workers (workers of the Far North, workers of areas included in special lists, workers of closed administrative entities), the period of compensation in case of impossibility of employment can be extended to 6 months.

Seasonal workers
Employees who refused to be transferred to another location for work
Employees who refused to continue working after changing the terms of the employment contract

Calculation of severance pay is carried out on the basis of the pensioner's average daily earnings for the last year, and is calculated in accordance with the number of working days falling in the month for which severance pay is paid.

Filling out a work book

The process of filling out a work book must comply with the regulations of Federal legislation. The responsible employee of the organization, personnel officer or accountant must indicate the following information in the work book:

Date of dismissal
Order number and date
Reason for dismissal with reference to the article of the Labor Code of the Russian Federation

It is mandatory to put the signature of the person who entered the data in the work book, as well as the wet seal of the organization.

Transfer to a fixed-term contract for subsequent dismissal

Many employers are looking for loopholes in the legislation in order to terminate employment relationships with older people. Some managers offer retirees to renew regular employment contracts for fixed-term ones.

If the employee agrees and signs a new document, then at the end of its validity period the organization may refuse to continue cooperation with him. But, if the pensioner refuses to transfer to a fixed-term contract, management will not be able to carry out this procedure independently.

This is due to the fact that, according to the regulations of Federal legislation, before concluding a new agreement, the old one must be terminated. And if the pensioner refuses to terminate the previous contract, then it will continue to have legal force.

Litigation

Very often, controversial situations arise between business entities and their retired employees. In the event that the parties fail to reach a compromise, the only way to resolve the conflict is to involve representatives of the law.

The pensioner should write statement of claim, in which you briefly but very succinctly state the essence of the problem, attach documents to it that will act as evidence, and go to court. As a rule, the courts always side with older people if their claims against employers are justified.

Dismissal of a pensioner: articles of the Labor Code

The legislative framework contains a special article of the Labor Code of the Russian Federation - dismissal in connection with retirement (paragraph 3 of Article 80 of the Labor Code), which regulates the procedure for terminating a person’s employment in connection with retirement.

Dismissal of pensioners: general provisions

The procedure for dismissing pensioners is carried out in accordance with a number of general rules, which apply to other categories of specialists. In the case of pensioners, similar grounds provided for in Articles 83, 77 and 81 of the Labor Code apply. The mechanism by which an employment contract is terminated remains the same.

Pay attention! If an employee reaches retirement age and implements pension rights, the employer still will not be able to fire him for his own reasons.

From this we can draw the following conclusion - the employer does not have any legal right to fire his worker when he reaches retirement age. The procedure is determined only by the personal requirements of the specialist himself.

Procedure and dismissal of a pensioner at will

The Labor Code discloses the procedure by which the dismissal of a pensioner at his own request is formalized in a number of articles. A specialist can come to the HR department at any time and state what he wants

free up your workplace. To do this, you must fill out and submit a written application for verification. It is issued two weeks before the scheduled date of dismissal.

The expiration date begins from the moment the completed and signed application is received by your employer. This requirement is put forward by Part 1 of Article 80 of the Labor Code.

Consider the following example. The specialist decided to leave his workplace on April 21, 2018. The working period will be calculated from April 22, that is, from the next day. IN in this case The last day of work is May 5, 2018. Termination of an employment contract due to retirement must be formalized on May 5th.

Terms of termination of an employment contract with a senior citizen

It also happens that a specialist can take advantage of a shortened warning period, which, in accordance with the law, is three days.

It can be used in three cases:

The specialist leaves the workplace during the testing period, as stated in Part 4 of Article 71 of the Labor Code
The specialist has previously signed an employment contract valid for no more than two months. This right is specified in Part 1 of Article 292 of the Labor Code
The employee performed seasonal work. The right to a shortened warning period is provided for in Part 1 of Article 296 of the Labor Code

Pay attention! Sometimes the warning period can be extended to 1 month. This occurs if the person retiring is in a leadership position, or is a coach or athlete.

Despite the fact that the law on the dismissal of pensioners sets specific deadlines, if you reach an agreement in advance with the head of the enterprise, you can terminate the employment contract earlier - right up to the end of the notice period. This opportunity appears thanks to Part 2 of Article 80 of the Labor Code of the Russian Federation.

Sequence of actions when dismissing a pensioner according to the law

After an employee who has decided to retire and end his career has submitted an application, the manager must issue a special order or order. The last document can be issued in form T-8. It is allowed to use your own form if it is developed and approved in advance.

In the section where the reasons for leaving the workplace are indicated, it is necessary to indicate under which article the organization has to dismiss the employee in connection with retirement. In this case, clause 3, part 1, art. 77 Labor Code of the Russian Federation.

The employee must read the completed order and sign the document. If necessary, the specialist is given a copy of the order, certified by the personnel department. If there is no possibility of dismissal by order, or the employee decides to refuse to familiarize himself with the document, a corresponding entry is made on the document. It can also be entered if the specialist is not at work on the day when the dismissal is formalized.

Important! According to the requirements of the Labor Code of the Russian Federation, upon termination of an employment contract, a corresponding entry is made in the labor and personal card, drawn up in accordance with the rules of the T-2 form.

Calculation of a retiring pensioner

On the last day, the employer is obliged to make a full payment - pay wages for the period worked.

After completing this procedure, the employee should receive:

Work record book
A reference document indicating the total salary for two years before dismissal
Information for the Pension Fund

When dismissal is initiated upon reaching retirement age, Article 140 of the Labor Code obliges the employer to pay compensation for unworked vacation.

How can you fire working pensioners without working out?

When initiating the dismissal of pensioners under the Labor Code of the Russian Federation, specialists reserve the right to do without working out. This possibility is provided for in Article 80 of the Labor Code.

This can be done if the employee can no longer continue to perform his or her job duties. For example, he retired. On the other hand, the law does not have a clear definition of the concept of “retirement”. This norm is used in practice as follows. You can obtain the right to dismissal without service at any time after the employee has received a pension.

You can use this opportunity and not work for 14 days only once.

The grounds for assigning a pension do not matter. The reasons are as follows: insurance pension after reaching old age, pension as a result of disability, for long service, and so on.

Periods of service for a beneficiary upon dismissal and formulation of reasons for leaving

The profile article of the Labor Code of the Russian Federation on dismissal makes it possible to leave the workplace without a period of service both from the moment it was appointed and after working for any period after the specialist received the official status of a pensioner. Employees who got a job after a pension was assigned can also take advantage of this opportunity. But there is one condition here - the implementation of this right has not previously been fulfilled.

Initiating dismissal due to retirement in this case, the article of the Labor Code does not provide for any distinctive points. True, the situation differs only in the absence of a working period, as well as the use of different wording to describe the grounds for dismissal.

Violation of the rights of pensioners during dismissal

Upon retirement, no employer should infringe on an employee's right to retain his or her position. Dismissal is carried out only at one's own request, or if serious mistakes are made in the course of professional activities.

Remember! Forced dismissal is the basis for applying to government authorities to appeal the decision and collect a fine from the employer.

Since 2019, the employer whose employees work in pre-retirement age, dismiss in unilaterally they will not be able to, according to Art. 144.1 of the Criminal Code of the Russian Federation. But when the employee has already reached retirement age, the employer may raise the issue of terminating the employment relationship with him. In this article we will examine whether a manager has the right to dismiss a pensioner from work without his consent.

According to Russian legislation, a person who has reached retirement age has the right to decide for himself whether to work or not. Moreover, according to statistics, 30% of Russians continue to work after reaching 55/60 years of age. In some cases, VDL (higher official) is not against pensioners working for him, in others the employer gives way to the young.

Reasons for terminating an employment contract with a pensioner

It is worth noting that a pensioner has the same rights as an ordinary citizen. That is, age is not a basis for unilateral dismissal.

The VDL can dismiss a retired employee in 3 ways:

At the request of the employee (where retirement is indicated as the reason);
By agreement of the parties;
At the initiative of the employer.

An employer has the right to dismiss a retired employee in the following cases:

Liquidation of the company;
Systematic violation of internal regulations or labor protection (with evidence);
Use of alcohol and drugs in the workplace (with evidence);
Unsatisfactory certification - that is, not suitable for the position held;
Staff reduction.

Therefore, age cannot be a reason for dismissal. Moreover, pensioners have a number of advantages and benefits that give them the right not to be unilaterally dismissed.

Pension Benefits

Pensioners upon reaching retirement age have a number of privileges, such as:

Termination of an employment contract unilaterally by an employee without working 2 weeks, in accordance with Art. 137 Labor Code of the Russian Federation;
Receiving a pension, and if the pensioner decides to continue working, then part of the pension;
Additional leave at your own expense, lasting 2 weeks.

Dismissal of a pensioner without his consent

If the boss is going to terminate the employment relationship with an employee who has currently reached 55/60 years of age, but does not intend to retire, then such actions, not supported by legal facts, will be regarded by the court as discrimination.

When dismissal due to staff reduction or liquidation of the organization, management must notify the retired employee of its intentions 2 months before the expected date of termination of the employment contract with him. The staffing table of the enterprise should also be posted on the information stand, where there will be no position previously occupied by a retired employee.

If a dismissed employee applies to the labor inspectorate with an application for the restoration of his labor rights, and the state body discovers as a result of the inspection that the VDL used staff reduction to get rid of unnecessary employees, then a fine will be imposed on him, as an official, and he will be brought to administrative responsibility.

If the dismissal of the pensioner was without his consent, but at the same time legal, then the employer is obliged to calculate and pay the former employee 2 salaries and compensation for unused vacation.

When an employer dismisses an employee due to his inadequacy for his position, he is obliged to provide a conclusion from a medical commission confirming the deterioration in the health of the retired employee, and an official document - the employee’s certification form with an unsatisfactory assessment of his professional skills.

Thus, we can conclude that they cannot dismiss a pensioner from work without his consent, since this is a violation of labor legislation, which as a result leads to unpleasant consequences for the employer. A pensioner is an ordinary employee who can be dismissed unilaterally only for compelling reasons, which are described in the Labor Code of the Russian Federation. Therefore, there is absolutely no need to worry about this topic.

*VDL - Highest official.

Dismissal of a pensioner without his consent is a personnel procedure that requires strict compliance with legal requirements. The law does not distinguish in this regard between a pensioner and an ordinary employee, but a pensioner has some advantages.

Upon reaching a certain age, according to the law of the Russian Federation, a citizen has the right to end his working life, that is, to retire and receive the required allowance from the state. But he doesn’t have such an obligation, in the Labor Code of the Russian Federation ( Labor Code of the Russian Federation) does not even contain the concept of “pensioner”, there is only the term “employee”. Often, an employer treats such an employee as ballast and ponders how to fire a pensioner without his consent, without exposing himself to harm.

Rights of pensioners to work

Men and women when they reach retirement age (about how retirement age from 2020, see table) have the right to continue working, and the employer has no right to dismiss them due to their reaching retirement age. They move into the category of “working pensioners” and can quit, of course, of their own free will (it is important that the employee himself wants this; pressure from the manager is not allowed). Moreover, if the application states “in connection with retirement,” such employees have the right to complete their careers, leave work without warning the organization’s administration two weeks in advance, that is, in fact, without “working off.”

Can a pensioner be fired without his consent? Of course, since this category of employees is subject to the norms of the Labor Code of the Russian Federation regarding dismissal at the initiative of the employer, the legislator does not make any exceptions.

When can you fire a citizen without his consent?

In accordance with the Labor Code of the Russian Federation, the company administration has the right to dismiss an employee without his consent on its own initiative.

	Base
Liquidation of the enterprise	Decision of the governing body
Gross violation by an employee of federal or local regulations, that is, those adopted by the organization	Act of investigation of the violation, conclusion of the commission created to investigate the case
Position mismatch	Conclusion of the certification commission, refusal to transfer to another position
Staff reduction	Decision of the governing body (in this case, competent citizens have a better chance of keeping their jobs)
Appearing drunk	Violation investigation report, commission conclusion
Theft, embezzlement, damage to company property	Act, conclusion, it is important to establish a connection between the worker’s actions and the adverse consequences that have occurred

In addition, there is such a special category of workers as civil servants. How to fire a pensioner without his desire according to the 2020 law if he is a civil servant? This occurs upon reaching the age limit, which in the civil service is 65 years, but if the employee occupies a management position, the age limit can be raised to 70 years.

Thus, the answer to the question whether it is possible to dismiss a pensioner without his consent is clearly affirmative, but it is important to comply with all formalities when making this decision. If a dispute with an employee goes to court, you must have clear evidence of the correctness of the decision, since judges often side with an elderly person. When a judge considers a case, the human factor plays an important role.

A new category of workers who cannot be fired

In connection with the entry into force of decisions that changed the retirement age, the government, wanting to mitigate the negative effect, introduced a new category of citizens: pre-retirees. The meaning of this concept is not legally established and is often interpreted differently. But for issues relating to the labor guarantees of such citizens, a definition exists, and it is given in the Criminal Code, in new article 144.1 of the Criminal Code of the Russian Federation, introduced by law dated October 3, 2018 N 352-FZ. It says that for the unjustified dismissal of a pre-retirement employee, the perpetrator faces a fine of up to 200,000 or 3,600 hours of compulsory work. At the end of the article there is a note saying that a pre-retirement citizen is a citizen who has 5 years left until retirement age.