How to fire a pensioner without his consent. The main features of the procedure for dismissing a pensioner How to dismiss a retired person

Is it possible to fire a pensioner without his desire and not break the law?

Answer

An employer can dismiss a working pensioner, like any other employee, only on the general grounds provided for by the Labor Code of the Russian Federation. Therefore, in addition to strictly adhering to the personnel procedure for dismissal, the grounds for dismissal must be legally justified.

In case of the slightest violations by the employer, the employee has the right to appeal to the regulatory authorities with a complaint on suspicion of age discrimination. Disputable situations in most cases are not resolved in favor of the employer. The court obliges not only to restore the pensioner in office, but also to pay compensation for absenteeism and moral damage.

Pensioners can resign of their own free will, and without a two-week notice to the administration, which is obligatory for all employees (Article 80 of the Labor Code of the Russian Federation). They can use this right once, indicating in the application the wording “in connection with retirement”. A similar entry is made in the work book. Lawyers will help you deal with the intricacies of HR administration - you can consult with them using a free application.

How to fire an employee without his desire according to the law

All the reasons why you can fire an employee without his consent are indicated in the Labor Code.

Grounds for dismissing an employee without his consent

Reasons for dismissing an employee	Grounds for dismissal
Expiration of the term of the employment contract	Art. 79 of the Labor Code of the Russian Federation
At the initiative of the employer (liquidation of the employer's organization, one-time gross violation of labor discipline, change of ownership, etc.)	Art. 79, 81 of the Labor Code of the Russian Federation
Downsizing if an employee resigns from another vacant position	Art. 179 of the Labor Code of the Russian Federation, when the employer has the right to give preference to workers with higher qualifications and labor productivity.
In the event of the occurrence of circumstances beyond the control of the parties	Art. 83 of the Labor Code of the Russian Federation
With regard to career military personnel retiring at the age of 45 to 65 years	Art. 49 ФЗ № 53
For civil servants who have reached the age limit of 65 (as an exception, powers can be extended for five years)	Article 25.1 of the Federal Law No. 79
In relation to scientific and pedagogical workers in case of non-election of an employee by competition	Art. 332 of the Labor Code of the Russian Federation

In order to find out whether the health or qualifications of the employee allows him to continue working in his position, the employer has the right to re-certification or send the employee for a medical re-examination.

If the conclusions of the attestation or medical commission confirm the need to transfer the employee to another position, then the dismissal will be justified if the pensioner refused the offered vacancies. In other cases, the dismissal of a pensioner occurs on a common basis with other employees.

In connection with the introduction of a new category of citizens - pre-retirees who are five years away from retirement - unjustified dismissal threatens with criminal sanctions for the employer (Article 144.1 of the Criminal Code of the Russian Federation). These sanctions include a fine of up to 200 thousand rubles or compulsory work in the amount of 3600 hours.

Compromise solutions for both sides

The option of dismissal by agreement of the parties is one of the most convenient solutions for an employer and a pensioner (Article 78 of the Labor Code of the Russian Federation). The parties determine the conditions that are acceptable to each of the parties. We recommend that, before issuing a dismissal order, draw up a bilateral agreement and record the fact that the parties have reached a mutual agreement, indicating the date of dismissal and other necessary conditions.

A retired employee can be offered a part-time transfer, in accordance with the rules provided for in Art. 93 of the Labor Code of the Russian Federation. For such a transfer to be justified and legal, it is necessary to formalize such an agreement with an additional agreement.

If the employee continues to work, at the initiative of the employer, he can be transferred to another position. This requires a written consent to the transfer from the pensioner (Article 77 of the Labor Code of the Russian Federation).

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After receiving retirement status, most people prefer to continue working - these are the realities of today. Behind the shoulders of middle-aged employees - knowledge, experience, qualifications and other "wealth" applied to the years. Unfortunately, these often include health problems, which means private sick leave. An employee of retirement age does not always want and can adapt to changing requirements, master new skills, there are difficulties regarding personal relationships in the work collective, especially if you have to obey a young boss.

There are plenty of reasons why an employer would like to retire such an employee. But what if the employee looks at it differently? How to comply with the procedure for legal dismissal without discriminating against the person being dismissed by age?

What are the benefits of retirees

According to the provisions of the current Labor Code, pensioners are equal in rights and obligations to all other employees (Article 3 of the Labor Code of the Russian Federation).

But in some cases, retirement age guarantees certain benefits at work.

1. According to the law, age cannot be a reason for refusing employment (Article 64 of the Labor Code of the Russian Federation).
2. A pensioner-veteran of the Great Patriotic War, if he continues to work, can choose the time for his vacation himself (clause 1, article 15-16 of Federal Law No. 5 of 01/12/95).
3. If desired, an employee of retirement age can take an additional unpaid leave of up to 14 days.
4. Working pensioners are exempt from paying property tax.
5. Elderly employees receive certain preferences when issuing vouchers to sanatoriums and other health institutions.

Age is not a reason for dismissal

As much as the employer would like to fire a retired employee in order to get rid of certain difficulties and make room for young people, the law does not allow this.

Art. 3 of the Labor Code of the Russian Federation clearly defines that the retirement age in no case can be a reason for dismissal.

IMPORTANT INFORMATION! Any insufficiently substantiated reason for the dismissal of a pensioner in court in most cases will be regarded as age discrimination, which is fraught with serious consequences for the employer.

Of course, in the arsenal of a leader there are many ways to force him to write a statement "of his own free will." But if a pensioner really does not have such a desire, but there is a determination to defend violated rights, then in court an employer looking for easy ways is practically doomed.

FOR YOUR INFORMATION! The wording “voluntarily” in relation to employees of retirement age is appropriate only if they have their good will. In this case, they can do without a mandatory warning for everyone 2 weeks before leaving (Article 80 of the Labor Code of the Russian Federation). They can use this right once, indicating in the application: "in connection with retirement." will also appear in the work book.

And if you agree?

Agreement of the parties is the most convenient way to say goodbye to an employee who, formally, has nothing to dismiss. With a pensioner who does not want to enjoy the joys of life without daily work, you need to talk tactfully, explaining the reasons of the leader and offering financial support. Most likely, the wisdom of the years will tell the employee that it is not worth fighting for a place in the organization where he is no longer needed. It will take the employer's mental subtlety to make this conversation pass without mutual resentment.

If an agreement is reached, an agreement is drawn up, on the basis of which the employment contract is terminated.

IMPORTANT! The agreement must reflect the will of both parties and the amount of benefits that the employer will have to pay upon dismissal.

The law is the same for everyone

The rest of the grounds for dismissing a pensioner from office are no different from those provided for all categories of workers.

Like any other subordinate, a senior employee can lose his job if:

• violates the work schedule and discipline in the team (skips, is late, appears in alcoholic intoxication, etc.);
• the company's staff is forced to downsize;
• the working conditions have changed, having ceased to suit the pensioner, and there are no other vacant positions of suitable qualifications in the company or he does not agree to them;
• the employer's organization is liquidated;
• his inconsistency with the position will be proved.

The work of a pensioner has become inferior

Position mismatch is the main employer's headache associated with retired employees. When a person is no longer able or does not want to work as required, of course, the employer has the right to part with him. But the manager himself is not authorized to objectively assess the official suitability of employees - for this, a special commission is created to certify the employee. If its verdict is “the loss of certain skills,” then an employee of retirement age who has ceased to correspond to his position must suggest other vacancies that will correspond to the qualifications available to him today. As a rule, these will be lower-level positions, paid much less. If the employee does not agree or if there are no suitable vacancies, the dismissal is lawful.

If an elderly person cannot fully fulfill his duties due to his failing health, the verdict of the commission will again be needed - just not the certification one. A medical one. The employer himself cannot make decisions about the employee's health compliance with job requirements. The procedure for dismissal after a verdict is the same as in the case of recertification.

When deadlines are tight

The employer has the right not to renew an employment contract that has expired, even if it is a contract with an employee who has reached the age of retirement. Here is another legitimate reason to spend it on vacation.

NOTE! If the contract was drawn up with an indefinite period, then it cannot be terminated without reason.

The employer may offer the employee to conclude a fixed-term contract in order to naturally dismiss the employee when the term expires. But forcing an employee to agree to such an option would be illegal, which can easily be proven in court. Fixed-term contracts with pensioners should be drawn up exclusively with their voluntary consent!

ATTENTION! Art. 59 of the Labor Code prohibits the termination of existing contracts in order to conclude urgent contracts instead!

Let's find a compromise?

If you cannot find a justified TC reason for dismissing an elderly employee who has ceased to suit the employer, you can look for a way out in which "both the sheep are safe and the wolves are full."

For example, instead of being completely dismissed from office, the retiree could be asked to go part-time, part-time, or a shortened week.

Thus, the employee retains his job and self-respect, and the manager saves on salaries and saves an experienced "cadre", for example, for mentoring and other functions.

Protected by the union

If the retired person to be dismissed is a member of a trade union operating at the enterprise, the employer must obtain consent from that body to terminate the employment relationship.

If there was no response to the employer's request within a week, the opinion of the trade union about dismissal in the future can be ignored.

If a negative opinion is expressed, this does not mean that the employee cannot be fired: it will simply be necessary to follow the appropriate procedure regarding the dismissal of union members.

Memo for the employer

Let's summarize the important nuances regarding the dismissal of pensioners.

1. Without the consent of a pensioner, it is impossible to fire him on the basis of age (Article 3 of the Labor Code of the Russian Federation).
2. The court equates the controversial reasons for the dismissal of a pensioner with age discrimination.
3. In cases beyond the control of the parties, staff reductions or changes in the terms of the employment contract, the dismissal of pensioners occurs in the same way as other employees.
4. A compromise solution could be the transfer of a retired employee to a shorter schedule.

Dismissal from work of a pensioner at the initiative of the employer was a common practice in Soviet times. If the management decided that the enterprise did not need "old" personnel, it could easily dismiss them as soon as the right to appoint them appeared. The employee's consent to dismissal was not required. However, since 1992, clause 1.1. Article 33 of the Labor Code (Labor Code), which allows this to be done, has become invalid (RF Law No. 2502-1 of 12.03.1992). And 10 years later, the legal act itself was abolished - it was replaced by the Labor Code of the Russian Federation, which has been in effect since February 1, 2002. Whether he allows managers to fire pensioners, our article will tell.

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

gross violation by the employee-head (deputy head) of the labor duties assigned to him (the violation is assessed as gross, including if it could cause property damage to the employer or harm the health of other employees - Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated 03.17.2004 , item 49);

The general procedure for dismissal at the initiative of the management is as follows (Article 84.1 of the Labor Code of the Russian Federation):

• An order is issued to terminate the employment contract with the employee. It specifies the grounds for dismissal.

  The employee reads the order of his superiors against signature. At his request, the employer is obliged to issue a certified copy of the document.

  Dismissal records are recorded in the employer's records.

  On the day of dismissal:

  • a full settlement with the employee is made (Article 140 of the Labor Code of the Russian Federation);

    he is issued a work book, a 2-NDFL certificate, a certificate of earnings for the last two years, as well as information about the pension insurance contributions transferred for him.

The Labor Code prohibits the dismissal of subordinates on the initiative of management if they are on vacation or sick leave (Article 81 of the Labor Code of the Russian Federation).

Working pensioners are not uncommon these days. A person works after retirement and this is his right. However, there are times when the employer wants to refuse the services of such an employee and the question of his dismissal arises. This is often due to the fact that elderly people often have health problems, therefore, they often use sick leave. In addition, an older worker does not always succeed in mastering new work methods, sometimes because of this, conflicts arise in the team. Let's take a closer look at how to fire a pensioner at the initiative of the employer.

Free legal advice

The retirement age is a period when a citizen of the Russian Federation begins to receive an old-age pension. This age is set by the state. Often this does not mean the end of work, and the person continues to work in his previous place. If a citizen has decided to postpone receiving a pension and continues to live only on a salary, this gives him the right to receive a higher pension in the future.

In Russia, there has long been a talk about raising the retirement age. In March 2018, it was officially upgraded. Women now retire at 60, men at 65. This is approved by Federal Law No. 350. The changes did not happen overnight, the age increases gradually, that is, the hatching age increases by 1 year every year. It turns out that when exactly a person will retire directly depends on the date of his birth.

As before, there are categories of citizens who are provided with an early pension. These include:

1. Citizens working in the Far North, as well as in all those places that are equated to them.
2. Teachers and health workers (medics). Condition: work experience must be at least 25-30 years by profession. There is no division into working conditions (in urban or rural areas a person worked).
3. Employees of municipal and state structures.

There are two more separate categories that will be able to benefit from early retirement from 2019:

1. Women who gave birth and raised 3-4 children (before this year, the benefit extended to mothers with 5 or more children).
2. Citizens with impressive work experience behind them. For women, this figure is 37 years, for men - 42 years.

The rights of a working pensioner

Free legal advice

It was 2019 that brought some innovations. A person who continues to work has the following privileges:

1. The ability to receive all relying cash payments, which include retirement or seniority pension, disability, loss of breadwinner. The only thing is that the pension of a working citizen is not indexed every year, like that of a working citizen.
2. A pensioner can take advantage of an additional unpaid leave of up to 2 weeks at any time of the year. In addition, leave should be provided for undergoing medical examination - it is 2 days.
3. Pensioners who continue to work do not pay tax on property located both in Russia and abroad.
4. When paying land tax, 6 acres are deducted from the total area of ​​the plot.
5. A working pensioner can resign of his own free will at any time, without work.
6. When buying real estate, a pensioner also has the right to a tax deduction from his salary, this applies to paid treatment or education of the child.

How to fire a pensioner

Dismissal of pensioners is regulated by several laws of the Labor Code of the Russian Federation No77,78,83,84 at once. 1. Retirement is not a reason to fire a citizen. At the same time, a person has every right to retain the position he held before. Dismissal cannot be made without the consent of the pensioner; this would be a direct violation. A pensioner can seek protection in the labor inspectorate or in court and, most likely, the employer will be obliged to reinstate the dismissed person in his previous position.

In total, there are several reasons for dismissal:

1. Dismissal on the personal initiative of the employee.
2. Dismissal at the request of the employer.
3. Official reduction of the organization's staff.

The group of pensioners who continue to work, who are subject to compulsory pension insurance, include:

1. Persons with a concluded labor or civil law contract.
2. SP with registered status.
3. Individuals in private practice, for example, notaries, lawyers.
4. Farm workers.
5. Persons working abroad but paying insurance premiums in Russia.
6. Priests.

According to the Labor Code of the Russian Federation, citizens who have retired while at their workplace have the following rights:

1. Work according to your aptitude group.
2. Quit solely at will, but not under duress. Any pressure is regarded as age discrimination.
3. Work on several part-time jobs.
4. When applying for a job, a pensioner has no right to refuse, justifying this by the age range.
5. Receive sick leave payment.
6. Work part-time or weekly.
7. Retain pre-emptive right when shortening.
8. Use all the benefits that are spelled out in the collective agreement. The pensioner also receives social benefits.

In order to terminate the contract with a pensioner, she herself, voluntarily, must write a statement. A postscript is entered there "of their own free will" and this is quite enough to leave without working off. At this moment, the pensioner is provided with a full calculation, a 2-NDFL certificate and other documents necessary for a citizen.

If the employer wants to fire a pensioner, then he can do this only for the following reasons:

1. Liquidation of the enterprise.
2. Downsizing.
3. Absenteeism and improper performance of duties that are provided for in the job description.
4. Violation of confidentiality, if such a clause takes place in the organization's charter.
5. Embezzlement, embezzlement or intentional harm to property.

If the manager intends to transfer the pensioner to another position, this is done with his consent.

When service is compulsory

Sometimes a pensioner has to work for 2 weeks. This happens in the following situations:

1. The statement did not indicate that the dismissal would be on retirement. This moment can be a loophole for an employer to insist on two weeks' work. Of course, it doesn't cost a citizen anything to write a new application and clarify the wording.
2. If the pensioner decides to get a job again after he has already exercised the right to leave without work. It does not depend on where he finds a job - in the old organization or in a new one. If there is an entry in the work book that the dismissal took place without working off, then he will not be able to resign again in the same way - he will need to work off. By law, this privilege can only be used once. There is complete freedom of action for the employer: if he decides to let him go without working off, then it will be so.

Important! If an agreement has been reached between the retiring pensioner and the employer, then work can be dispensed with.

The procedure for dismissing pensioners of their own free will

The dismissal algorithm is as follows:

1. Submission of a written application addressed to the manager with the wording "to resign on personal initiative." The application must be dated and signed by the employee himself, then the document is signed by the manager.
2. Formation of an order in the form of T-8, the form established in the organization is allowed. A citizen must personally familiarize himself with the document, sign it.
3. A corresponding note is made in the work book of the former employee. The same information can be entered on a personal T-2 form card.
4. On the day that is considered the last working day, the pensioner must be provided with a full calculation, which includes the salary for all days worked and compensation payment for unused vacation. Sometimes, if it is provided for by the charter of the organization, they can also accrue bonus bonuses. Upon dismissal on his own initiative, no severance pay is due to a citizen. It can be charged when it is provided for in the employment contract, and it usually does not exceed three average monthly salaries.

According to Art. 80 of the Labor Code of the Russian Federation, a pensioner has every right to leave any day after the retirement age.

When staff downsize

The abbreviation usually has a reason for this. These reasons include:

1. Reorganization of a legal entity, that is, a case when an organization ends its activities or becomes part of another company.
2. The organization decides to reduce the amount of produced products, therefore, it seems inappropriate to keep the staff in the same amount.
3. The organization decides to change the type of activity.
4. The workforce is being optimized at the enterprise. Under this formulation, it is customary to understand a set of decisions that are taken to increase the efficiency of labor resources while reducing the cost of their maintenance.

It is believed that these mechanisms are often used to reduce the number of employees in the organization.

As for working pensioners, they must be offered another position. It may have a lower salary and other qualification requirements. If the person does not agree to such conditions, he will be asked to vacate the space. He must be notified at least 2 months in advance.

If the company has made a decision to reduce the position occupied by a pensioner, then this is quite acceptable.

There is such a thing as preemptive right. When reducing the state, the pensioner uses it on a general basis: the presence of dependents, disabilities and other factors are also considered.

According to the new rules of 2019, employees should be notified in case of layoffs 3 months before this moment. For two months, there should already be an order on what the new, optimized state will be, as well as a list of persons who will be released.

Dismissals of financially responsible pensioners

In fact, the dismissal of a materially responsible pensioner is not much different from an ordinary employee of retirement age. The most important condition is the transfer of entrusted material assets to the successor.

In Art. 243 and 244 of the Labor Code of the Russian Federation determine all the points related to the grounds for imposing material liability, the procedure for its adoption and transfer. Liability can be spelled out in an employment contract or in a temporary power of attorney.

Since a working pensioner has the right not to work for two weeks, the transfer of material assets should take place in the shortest possible time. The employer must make an inventory of the entrusted values, which were in charge of the employee. For these purposes, a special inventory commission is appointed. The pensioner must also be present. Without it, all actions of the commission are considered invalid.

If in the course of the inventory shortages, damage to property were identified, then the retirement age in no way can serve as a reason for not reimbursing the organization for harm. If the pensioner refuses to claim, it must be reflected in the relevant act and signed by two witnesses. It is important to know that the employer has the right to compensate for damage from the salary of a retired employee within 1 month (according to Art. 248 of the Labor Code of the Russian Federation). Otherwise, it will be possible to compensate for the damage only by a court decision.

When establishing a probationary period

The list of persons to whom a probationary period cannot be applied does not include pensioners. Consequently, a pensioner may well pass a probationary period. As a rule, he has the right to resign on any day of the probationary period. There are no refutations to this in any law, and judicial practice just recognizes this right as legal.

Due to retirement

When a person reaches retirement age and retires, they are fired in the same way as any other citizen. There are only a few nuances, starting with the fact that retirement is not a layoff. It just means that a citizen is entitled to a pension. From this moment on, the citizen has the right to either quit immediately or at any other moment. The dismissal process begins with writing an application addressed to the manager. It is important to indicate the name of the manager and your own data, position held, formulate a request for dismissal, sign and date.

Rights upon dismissal of persons of pre-retirement age

The pre-retirement age is the five years prior to retirement. Citizens of this age have the following rights:

1. The right to additional days off in order to undergo a medical examination. Such two days should be paid according to the average earnings. How long these days will fall should be coordinated with the leadership of the organization.
2. The right to receive unemployment benefits up to 11,280 rubles for 1 year. This is done only when registering with the Employment Center and registering as unemployed.
3. The right to training, professional development at the expense of the organization.

When dismissing employees of pre-retirement age, the following rules apply:

1. The management is obliged to notify the employee of the dismissal at least 2 months in advance.
2. An employer may offer an alternative vacancy to a pre-retirement officer.
3. The right of preference may belong to highly qualified employees, citizens with dependents, as well as persons who have received occupational diseases at the enterprise.

Upon dismissal, the pre-retirement receives:

1. Severance pay is the average monthly wage.
2. Maintaining average wages for 2-3 months.

Important! The employer does not have the right to unreasonably dismiss pre-retirees, nor can he provide them with employment for this reason.

Upon expiration of the term of the fixed-term contract

A pensioner may well be dismissed if the term of the fixed-term contract that was concluded with him has expired. This is regulated in Art. 70 of the Labor Code of the Russian Federation. The fact that the term of the fixed-term contract has expired does not mean mandatory dismissal; this requires the initiative of one of the parties to the contract.

If both parties do not express such a desire, then the contract is considered prolonged for an indefinite period. If a fixed-term contract implied the performance of a specific work, then it terminates when it is completed.

Pensioners not by age, but due to seniority

The following categories of citizens are entitled to a seniority pension:

1. Federal civil servants.
2. Servicemen, employees of power structures, the Ministry of Internal Affairs.
3. Doctors, teachers, kindergarten teachers.
4. Cosmonauts, flight test personnel.
5. Workers employed in hazardous industries.

There is no clearly established retirement age, each category has its own. In addition to the category, the experience in the specialty, age, availability and number of pension points matters.

Such retirees are entitled to a number of benefits:

1. Exemption from land, transport, income tax.
2. The possibility of using preferential programs for the purchase of housing.
3. Discounts on medicines or their free provision, but only if they are included in the appropriate list.
4. To receive vouchers out of turn for health improvement in sanatoriums.
5. For financial assistance if the pensioner is recognized as low-income.

Has previously resigned due to retirement

As already mentioned, a pensioner has the right to quit without working off only once - if there is an entry about this in the work book. If a citizen has already resigned in connection with retirement, his subsequent dismissals occur on a general basis with the wording "of his own free will." In general, there is no clear concept in the law about how many times one can resign upon retirement.

In judicial practice, cases with dismissing pensioners are often considered.

The following types of claims are usually considered:

1. On the recovery of severance pay. The claim may be denied to him on the grounds that he does not have the right to such benefits and this is spelled out in the local act of the organization.
2. On establishing the size of lump-sum payments upon retirement. Sometimes a pensioner may fundamentally disagree with the amounts that were paid to him upon retirement, and he goes to court. If the employer acted lawfully, then the pensioner will be denied the claim.
3. On granting the status of a non-working pensioner.
4. On the cancellation of the order to dismiss. Sometimes a pensioner, having already received all the severance pay, tries to challenge the dismissal. If the court finds that the employer acted in accordance with the law, then the citizen will be denied the claim.
5. On being forced to resign of their own accord in connection with retirement. This is true when the employer insists on it. Sometimes it happens that a pensioner himself misunderstood his status, then the court rejects his claim.

Memo for the employer

An employer, when dealing with a working pensioner, must always remember several important points:

1. You cannot be fired without the consent of a retired employee.
2. Refusal to hire because of retirement (pre-retirement) age will also be illegal.
3. Officially, there is no such formulation as dismissal due to old age.
4. The employer can include in the local act of the organization such clauses that will encourage employees to retire on their own upon reaching retirement age. In fact, this means that conditions are created for pensioners under which they themselves do not want to work.
5. An employee of retirement age often tries to detect violation of his rights and prove it in court. In most of the above lawsuits, the court takes the side of the pensioner.

The legislative framework

The Labor Code of the Russian Federation regulates all the subtleties of retirement of pensioners under a variety of circumstances. Both employers and employees themselves need to know their rights, but at the same time their responsibilities. There is nothing strange in the fact that a person has decided to continue working, and the manager should be sympathetic to this. There are many laws that support the rights of working retirees.

Last update: 15.02.2020

Starting in 2019, the notorious pension reform was launched, which raised the retirement age. One of the reasons for the indignation of citizens about this was the reluctance of employers to accept candidates of pre-retirement age for vacancies. How the dismissal of a working pensioner differs from other employees worries many.

Russian legislation provides for the right to go on a well-deserved rest, receiving pension payments if there is sufficient insurance experience and an individual coefficient for the appointment of a pension.

Step by step the age limits when you can qualify for retirement benefits, in normal cases:

• 65 years old - for men;
• 60 years - for the beautiful half of society (women).

Benefits for people who have worked in special, harmful, hazardous to health and life conditions remain. If they have a certain number of years of special and general insurance experience, they can leave work and receive a pension earlier.

Often, retirees are in no hurry to leave work, and after receiving payments, they continue to work. This is not always connected only with the possibility of earning additional income. Some of them simply cannot imagine themselves without communicating with people, realizing the feeling of their need for others.

Let's talk about the nuances, is it possible to fire a pensioner without his consent.

Let us dwell in more detail, answering:

• what rights and advantages do people who continue to work on retirement have;
• under what circumstances can a pensioner be dismissed, is it possible without his consent;
• to other troubling questions.

Grounds for dismissing a pensioner

We note right away that labor legislation does not provide for separate grounds for terminating labor relations with persons who have reached retirement age and continue to work in organizations of any form of ownership (or with individual entrepreneurs).

The main reasons for terminating the contract are determined by the Labor Code (Art. 77).

Let's consider the most common ones in more detail. We will answer whether a pensioner can be fired from his job.

At the initiative of the authorities

From the point of view of the law, if there are grounds to part with a subordinate at the initiative of the employer, there are no exceptions for pensioners.

In general, a working pensioner will be dismissed:

• if the company is liquidated in the event of its recognition as bankrupt or by decision of the owner;
• when a reorganization is underway and a reduction in the number or staff is planned;
• after certification, indicating an insufficient level of qualifications, if an inadequacy for the position held is revealed;
• if he occupies a leading position and the owner of the enterprise has changed;
• there are repeated remarks, reprimands were announced for violation of labor discipline;
• for gross violations of discipline, even in isolated cases (absenteeism, drinking, and the like);
• in other situations provided for by the provisions of Art. 81 of the Labor Code of the Russian Federation.

When a subordinate is dismissed by the owner (or manager) associated only with his age, you can appeal against the actions of the employer:

• to the supervisory authorities - the territorial labor inspectorate at the place of registration of the legal entity (the actual location of the entrepreneur), the prosecutor's office;
• directly through the court.

At the discretion of a pensioner

You can always terminate your employment at your own will.

The law requires the employer to notify the employer in advance at least two weeks in writing about the intention to leave the job.

Moreover, if during the working period the employee changes his mind about resigning, you can withdraw the application, unless another person was invited to transfer from a third-party organization to the vacated place.

Also, if, at the end of the two-week period, he continues to perform his labor duties, without insisting on a dismissal, the employment relationship remains valid.

According to the third part of Art. 80 of the Labor Code of the Russian Federation, the law makes an exception to persons who leave in connection with retirement. The employer must issue a full calculation for them, without forcing them to work off.

By agreement of the parties

The law (Article 78 of the Labor Code of the Russian Federation) allows early termination of labor relations if the parties were able to agree and have no claims.

In this case, the dismissal of a working pensioner on the initiative of the employer can also be only after obtaining his consent.

Both the employer and the subordinate can offer conditions that are beneficial for each of the parties.

It is not necessary to draw up a written agreement stipulating the fulfillment of certain points. It is enough to indicate in the letter of resignation as the basis - the agreement of the parties.

Practice shows: workers often use this if they do not want to or, due to circumstances, cannot stay behind for the prescribed two-week working period.

Violators of labor discipline also agree with this wording in order to peacefully part with the employer without damaging their reputation in the work book.

The rights and benefits of a working pensioner

Speaking about whether a pensioner can be fired without his consent due to old age, the answer is categorical - no.

It remains the right of only the person himself to continue to work further or go on a well-deserved rest. The situation is similar with the employment of retired persons.

For example, a person, after leaving the enterprise, having issued a pension, after a certain period of time decided that he did not want to sit around at home. More often than not, the purely material side of the matter forces us to make such a decision, regrettably as it may seem, but it remains a fact.

An employer has no right to refuse employment to a pensioner in the presence of a vacancy, referring to his age.

Otherwise, it will be recognized as a gross violation of labor law - discrimination of human rights. To protect your interests, you can go to court with a claim. Naturally, it is unlikely that normal labor relations will develop with this employer in the future.

Additional benefits serve as evidence that the legislator provides for the right to continue to work further while receiving a pension.

In Art. 128 of the Labor Code of the Russian Federation enshrines the right of a working pensioner:

• during the calendar year, in addition to the mandatory annual paid vacation, at any convenient time, take an additional free vacation of up to 14 days.
• If the pensioner is recognized as disabled, the employer is obliged, at the request of the employee, to provide him with additional rest for up to 60 calendar days.

Note that additional leave can be used immediately, or split into parts. In this case, the remaining unused days are not carried over to the next calendar year.

Does the owner have discretionary powers to fire retirees?

The very fact that a person has the right to retire after reaching the legal age cannot serve as a reason to compel him to dismiss if:

• he himself does not want it;
• for medical reasons, able to perform work duties;
• there is no justified reason to dismiss him on the initiative of the management.

Nuances

With an employee who indicated in the application a specific desire to leave work due to retirement, the contract must be terminated on the date agreed by him.

In what cases is a pensioner dismissed with work?

Opinions differ on the legality of the requirement to work upon dismissal of a pensioner who took a job after he was on a well-deserved rest.

By all logic, he cannot retire again, since he has already formalized it, and he himself expressed a desire to work again.

On the other hand, this can be regarded as the impossibility of continuing to work further.

We must pay tribute to the fact that, as a rule, if the decision to dismiss a working pensioner is made on his own initiative, employers do not force him to work, even if the person finds a job after retirement.

But, if the employer formalizes the dismissal 2 weeks after the pensioner applies, this is not considered a violation of the law.

How is the dismissal of a pensioner on his own initiative

After receiving a statement indicating that the employee wants to leave work due to retirement, the employer:

• issues an order;
• makes an appropriate entry in the work book;
• prepares obligatory accounting statements;
• makes a full calculation and hands out documents within the time period specified when applying.

If a working pensioner indicates only his own desire as the reason for dismissal, the contractual relationship is terminated after a two-week period.

Compliance with the requirements for dismissal at the initiative of the superiors

In order to avoid conflicts, the employer is obliged, despite the fact that the person being dismissed, is, in fact, a pensioner, to complete all the mandatory procedural measures, using the right to terminate the employment contract unilaterally.

For example, dismissing an employee “under the article” for absenteeism, it is necessary to demand a written explanation from the guilty party. Only two days later, if the employee does not provide supporting documents and a written explanatory note, it is possible, after drawing up the relevant act, to issue a dismissal order.

Moreover, it is impossible to issue a dismissal while a person is on vacation, undergoing treatment or undergoing a rehabilitation period.

Also, do not forget that you can be held accountable within a month after the day when the violation became known and the employee's guilt was proven, if the violation of the terms of the employment contract itself occurred no more than six months ago.

The only exceptions are cases of identification of culpable actions in the course of an audit or audit.

In such situations, the employee may be dismissed as disciplinary action for misconduct committed within the previous two years.

First of all, we note that it is impossible to dismiss an employee to lay off, just referring to his retirement age and payments received.

When an enterprise is liquidated (by decision of the owner or declared bankruptcy by the court), it is clear that all employees will be dismissed.

If the employer has decided to reduce the number of workers or staff, they are more scrupulous about the choice of candidates who are fired.

They take into account the length of service and work experience of employees, their attitude to the performance of work duties. Most often, the advantage in staying at work from this point of view remains with the working pensioner.

But, if, for example, there will be a choice of whom to leave at work if it is necessary to reduce the staffing unit - a mother of two children or a working pensioner, of course, even with all the advantages of the latter, it will be he who will be laid off.

This is understandable, since there is an additional source of income.

Other privileges guaranteed by legislation are taken into account.

In any case, the procedural order must be followed:

• At least two months before issuing a dismissal, the selected candidates must be notified in writing against a personal signature about the upcoming layoff;
• if there are vacancies, the employee must be offered the design of the transfer;
• in case of refusal to transfer (in the absence of suitable vacancies), the employment relationship with the employee is terminated.

When can I be dismissed due to seniority

The amendments made to the pension legislation did not affect the benefits for people who worked in special, harmful, hazardous to health and life conditions.

If they have sufficient special and general insurance experience, they will be able to retire earlier.

Prescribe and pay monthly pension payments in the presence of a special length of service (by length of service):

• without taking into account the actual state of work ability;
• persons under the established age for the right to receive an old-age pension.

If you are in doubt whether a pensioner can be fired without his consent for seniority, you can refer directly to industry agreements.

Legal and legislative acts indicate that in this case there should be an initiative of the person who received the right to early rest.

Specifics concerning the termination of labor relations with persons of pre-retirement age

If there are no more than 5 years left before obtaining the right to pension, the person is considered to be of pre-retirement age.

In case of dismissal of such an employee, referring to the age category, the employer will be held liable:

• administrative (according to article 5.27 of the Code of Administrative Offenses of the Russian Federation);
• or criminal (amendments to Art. 144.1 of the Criminal Code of the Russian Federation have been in effect since 2019).

Settlement with a working pensioner upon dismissal

Regardless of the reasons for the termination of labor legal relations with a working pensioner, on the last working day they are obliged to pay in full with him, to pay all the amounts due:

• earnings for the time actually worked from the date of the last payments;
• in the case of the remaining unused days of paid vacation - monetary compensation based on the average earnings for the previous year.

If a pensioner has been laid off, he is given a severance pay in the amount of his average monthly earnings. The right to receive payments remains for the second month, if the person has not found a new job.

In addition, the allowance will be paid the amount of the average earnings for two weeks if:

• for health reasons, the employee can no longer perform his labor functions;
• the pensioner refused to transfer to light work (or the employer does not have suitable vacancies);
• if there is a medical opinion that the working pensioner is recognized as completely incapacitated.

Local legal acts of internal use (in particular, the collective agreement) may provide for an additional payment to employees who leave in connection with the release of a well-deserved rest.

Legal framework governing the dismissal of pensioners

Any issues related to labor relations and their termination are regulated by the Labor Code.

Depending on the area of ​​production, you should be guided by other federal laws related to labor law, industry agreements.

For violation of guaranteed rights, employers are liable in accordance with administrative and criminal legislation.

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