Labor Code of the Russian Federation for employee reduction Article 179. The theory of everything. Does a company have the right not to analyze whether employees have preferential rights if all staff positions for this position are reduced?

Full text of Art. 179 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 179 of the Labor Code of the Russian Federation.

When the number or staff of employees is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference in remaining at work is given to: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood); persons in whose family there are no other independent workers; employees who received a work injury or occupational disease while working for this employer; disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland; employees who improve their qualifications in the direction of the employer without interruption from work.
The collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications.

Commentary on Article 179 of the Labor Code of the Russian Federation

1. This article defines the procedure for dismissing an employee due to a reduction in the number or staff of employees of both an organization and an individual entrepreneur.

When the number (staff) of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications.
The Constitutional Court of the Russian Federation noted that, by establishing the criteria of “higher labor productivity and qualifications,” the legislator proceeded both from the need to provide additional measures to protect labor rights for employees who have better performance results and better professional qualities, and from the employer’s interest in continuing the employment relationship with the most qualified and efficiently working employees (see the definition of the Constitutional Court of the Russian Federation of December 21, 2006 N 581-O).

The possibility of exercising such a preemptive right depends on the specific composition of persons who are subject to reduction and occupy positions with similar qualification requirements.

This provision is applied when reducing persons occupying positions with similar qualification requirements by comparing their business qualities. When deciding on the issue of preferential rights in case of layoffs, the employer must compare qualifications and labor productivity, as well as other criteria in relation to all employees holding a particular position (as indicated, in particular, in the appeal ruling of the Yaroslavl Regional Court dated October 29, 2012 on case No. 33-5903/2012).
It should be noted that if there is only one position held by the employee and which was subject to reduction in the employer’s staff list, the employee’s preemptive right to remain at work cannot be applied (this conclusion follows, in particular, from the appeal ruling of the Moscow City court dated November 22, 2012 in case No. 11-27863).

Quite often, disputes arise about the legality of the employer’s use of the preemptive right to keep an employee at work.

Thus, the court came to the conclusion that the procedure for dismissing an employee by the employer was not violated, since the qualifications of the leading engineer who remained at work and the volume of work he performed were higher than that of the plaintiff - an engineer of the 1st category (in respect of whom the reduction took place ). Also, unlike the plaintiff, who has a secondary education, the leading engineers had a higher education (see the appeal ruling of the Moscow Regional Court dated August 14, 2012 in case No. 33-13994/2012, see also the appeal ruling of the Omsk Regional Court dated 7 November 2012 in case No. 33-6947/12).
It is important to remember that in all cases, upon the employee’s application, the correctness of the employer’s measures to reduce the number or staff of employees can be verified in court.

2. The commented article also establishes that in the case where the employer has identified equal labor productivity and qualifications of employees, but layoffs are planned for some of them, the following criteria must be taken into account.

Preference in remaining at work should be given to:
- family persons - if they have two or more dependents. Dependents are understood as disabled family members who are fully supported by the employee or receive assistance from him, moreover, such assistance must be a permanent and main source of livelihood for them. For example, dependents include a non-working wife and children;
- persons in whose family there are no other workers with independent income. Based on this legislative wording, the fact that other members of the employee’s family receive social payments: pensions, benefits, compensation, etc. - not taken into account here;
- employees who received a work injury or occupational disease while working for this employer. Definitions of these concepts are given in Art. 3 Federal Law "On compulsory social insurance against accidents at work and occupational diseases";
- disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland. The list of persons classified in this category is given in Art. 4 Federal Law "On Veterans";
- employees who improve their qualifications in the direction of the employer without interruption from work.
Persons from these categories have the right to count on preferential retention at work. At the same time, they must document their status.

If several employees have such grounds at once, the one who has more reasons to remain at work gets priority.

3. Other categories of citizens also enjoy a preferential right to remain at work during liquidation, reduction of personnel or staff.

So, paragraph 6 of Art. 10 of the Federal Law of May 27, 1998 N 76-FZ "On the status of military personnel" provides that spouses of military personnel - citizens, other things being equal, have a preferential right to remain employed in government organizations, military units when the number or staff of employees is reduced.

For citizens who received or suffered radiation sickness and other diseases associated with radiation exposure as a result of the Chernobyl disaster or with work to eliminate the consequences of the disaster at the Chernobyl nuclear power plant, disabled people as a result of the Chernobyl disaster, Part 7 of Art. 14 of the Law of the Russian Federation of May 15, 1991 N 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant” establishes a preferential right to remain at work in the event of a reduction in the number or staff, regardless of their time of work at the enterprise or institution , organizations.

According to Art. 2 of the Federal Law of January 10, 2002 N 2-FZ "On social guarantees for citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site" priority right to remain at work in the event of a reduction in the number or staff, regardless of the time of work in the organization and priority employment in the event of liquidation or reorganization of this organization are citizens who have received a total (accumulated) effective radiation dose exceeding 25 cSv (rem).

In addition, the preferential right to remain at work with equal labor productivity and qualifications for certain categories of workers is provided for by a number of other regulatory legal acts, and can also be established by a collective agreement.

Let us give examples from judicial practice illustrating the employer's determination of the preferential right to keep an employee at work according to criteria different from those specified in the commented article, with equal labor productivity and qualifications.

When determining an employee who has the preferential right to remain at work, the employer used an indicator such as “unproductive loss of working time,” which meant, in particular, the employee’s being on sick leave and time off, that is, in essence, absence from the workplace for valid reasons. reason. Accordingly, the reduction was applied to the person whose indicator was higher. The court concluded that such an approach cannot characterize the labor productivity of a dismissed employee. Since he had higher qualifications compared to the employee left at work, he had a preferential right to remain at work (see the appeal ruling of the Yaroslavl Regional Court dated October 29, 2012 in case No. 33-5903/2012).

An employee who has relatively the same qualifications as other persons occupying a similar position has, at the same time, been repeatedly subject to disciplinary action. This circumstance, of course, could be taken into account when deciding the issue of the preferential right to remain at work and subsequent layoffs (see the appeal ruling of the Moscow City Court dated September 26, 2012 in case No. 11-23422).

Consultations and comments from lawyers on Article 179 of the Labor Code of the Russian Federation

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When the number or staff of employees is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications.

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

The collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications.

Commentary to Art. 179 Labor Code of the Russian Federation

Judicial practice under Article 179 of the Labor Code of the Russian Federation

The applicant sees a violation of his rights in the fact that the contested norms in their interrelation do not include the grounds for dismissal of a state civil servant provided for in clause 6 of part 1 of Article 33 of the Federal Law “On the State Civil Service of the Russian Federation” (as originally amended) to the grounds for dismissal on the initiative of a representative of the employer and thereby prevent the provision of a state civil servant, in whose family there are no other workers with independent earnings, guarantees in the form of a preferential right to remain at work, as provided for in the article of the Labor Code of the Russian Federation, which, by virtue of Article 73 of the Federal Law "On the State Civil Service of the Russian Federation" Federation", establishing that laws and other normative legal acts containing labor law norms apply to relations related to the state civil service, to the extent not regulated by this Federal Law, would be subject to application if his dismissal was recognized as committed on the initiative of a representative of the employer . In this regard, the applicant requests that the contested norms be declared contrary to the Constitution of the Russian Federation, its Articles 7, 19 (Part 2), 37 (Part 1), 38 (Part 1) and 55 (Part 3).

Part one of the article of the Labor Code of the Russian Federation is also one of the norms regulating the procedure for dismissal in connection with a reduction in the number of employees, defining a rule for selecting employees to remain at work based on objective criteria. Having established labor productivity and employee qualifications as such criteria, the legislator proceeded both from the need to provide additional measures of protection to employees who have higher labor results and better professional qualities, and from the employer’s interest in continuing labor relations with the most qualified employees who effectively perform their job duties . The correctness of the employer’s application of the specified criteria when carrying out measures to reduce the number or staff of employees can be verified upon the employee’s application in court.

When implementing measures to reduce the number of employees, the head of the organization must remember that highly qualified subordinates have a preferential right to remain in their position in the enterprise. This rule is enshrined in Art. 179 Labor Code of the Russian Federation. If all employees of an enterprise have the same qualifications, then jobs should be reserved for family citizens with several dependents, as well as for those who were injured during their professional activities in the organization, war invalids and persons undergoing training in the direction of leader without interruption from service.

What is important to know

Many citizens who fall under redundancy are wondering whether they will be able to remain at work in their position if they have high qualifications, certain knowledge, experience and positive characteristics. Here we can say for sure that the head of the organization cannot fire such subordinates. Because the norm of Art. 179 of the Labor Code of the Russian Federation indicates that highly qualified employees have a preferential right to remain at the enterprise in their workplace.

If the manager cannot independently determine the categories of subordinates who should be dismissed due to reduction, then he needs to consult with the organization’s lawyer and take into account the opinion of the trade union.

It is also necessary to remember that in the absence of employees with the highest labor productivity at the enterprise, preference should be given to family citizens who have several dependents to support, as well as to persons injured during the performance of official duties, and disabled people from the Second World War. This rule is enshrined in Art. 179 Labor Code of the Russian Federation.

With the same performance

Taking into account the norms of Art. 179 of the Labor Code of the Russian Federation, the reduction should bypass the following categories of employees:

• family people who support two or more dependents (i.e. disabled citizens for whom the breadwinner’s earnings are considered the main income);
• subordinates who received serious injuries at work while performing official duties at this company;
• family persons, if no one else in his family has a source of income (even able-bodied relatives of the latter);
• disabled people of the Second World War and participants in military operations to defend the state;
• persons who carry out advanced training in the direction of their superiors without interrupting their work.

It is important.

How to determine

Art. 179 of the Labor Code of the Russian Federation in the new edition indicates that employees who have very high or even better labor productivity and qualifications have a priority right to remain in their position in the event of a reduction in staff. But how can you identify the people who need to be retained in an organization?

Here you need to carefully review the personal file of the employee who is supposedly being laid off. If he has work experience, a good education, quickly fulfills the duties assigned to him and does not violate labor discipline in the organization, then, accordingly, it will not be possible to fire him. Otherwise, the latter will be reinstated at work through the courts.

Necessary actions

The administration of the organization, together with the trade union, needs to carefully review the personal files of all subordinates who are supposedly being laid off. Moreover, if all employees have the same level of education and the same work experience in their specialty, then preference should be given to families with children, war veterans and those who were injured in the line of duty at a given enterprise, because this is the rule stated in Part 2 of Art. 179 Labor Code of the Russian Federation.

Other categories

The collective agreement of the organization may also include other citizens who have preferential rights to remain in the organization. These include:

• people of pre-retirement age, when there is very little time left before they retire;
• minor citizens;
• subordinates who have been working at the enterprise for many years (15 or more);
• specialists just starting their career (in the first three years of work);
• employees raising a child under 16 years of age without the participation of a second parent.

A comment

Those employees who have very good labor productivity and high qualifications have an advantage when making redundancies. This is stated in Art. 179 Labor Code of the Russian Federation. It is impossible not to agree with her comments. Because it is these two criteria that allow the employer to decide on the choice of those employees who will not be dismissed on this basis.

If several subordinates are laid off, one of whom has extensive work experience and a high level of qualifications, then preference for remaining in the position will be given to him and not to other citizens.

In the event that all employees have the same knowledge and equal productivity, the enterprise needs to reserve places for family people, war invalids, as well as those people who received injuries during the performance of their official duties.

Typical mistakes of a manager

For some reason, most employers believe that by laying off employees they can get rid of subordinates they don’t like. Although this is not at all true. The latter can be reinstated in their positions through the courts.

In addition, employees with good labor productivity and a sufficiently high level of education have an advantage over other subordinates who are being laid off. This rule is fixed in Part 1 of Art. 179 Labor Code of the Russian Federation. And even if these citizens do not arouse the sympathy of the boss, they still cannot be laid off without a proper assessment of their professional qualities. Moreover, they must be under the protection of the trade union committee.

Carrying out the procedure

The employee must be warned in advance about the upcoming layoff. The law provides for a certain period of time for this, which cannot be less than two months. The person receives a corresponding notification, the second copy of which remains in his personal file at the enterprise. In addition, the head of the organization must remember that highly qualified employees have an advantage over other subordinates, and all those subject to layoffs must be offered available vacancies that exist in the company. These rules are enshrined in Art. 179, 180 Labor Code of the Russian Federation.

When a subordinate refuses the offered vacancy and wants to leave the position being reduced early, the manager is obliged to pay him all the money due on the last day of his official activity.

Additional guarantees

In the event that all subordinates at an enterprise have the same productivity and level of education, then preference for remaining in the workplace during staff reduction is given to: family citizens with two or more dependents, war invalids, persons injured while performing official duties in this organization - this is written about in the article. 179. Art. 261 of the Labor Code of the Russian Federation complements the category of people who cannot be fired in connection with the implementation of these events. Thus, the reduction should not affect the following citizens:

• representatives of the fair sex who support children under three years of age;
• single mothers raising disabled children under 18 years of age or minors (if under 14 years old);
• a person who is considered the sole breadwinner if he has more than three children in his family, one of whom is under three years old, and his wife is not employed and does not have a source of livelihood;
• a person who himself supports a disabled child (until the latter reaches adulthood).

Practice

The citizen was warned about the upcoming reduction two months before the implementation of these measures. At the same time, the head of the organization did not offer him available vacancies. After the expiration of the period of time specified in the notice, the employee was dismissed from the organization with the payment of benefits.

The citizen considered that the contract with him was terminated unfairly, because he has a very good education, work experience and copes with his responsibilities much faster than other subordinates who remained at their jobs. The man went to court.

When all the circumstances were clarified at the meeting, it was established that the dismissed employee not only had good education and productivity, but also he had never been held accountable for violating discipline at the enterprise. While other subordinates remaining in the organization are constantly late and do not fulfill the work plan. In this regard, the court concluded that the person was fired illegally. Therefore, the man was reinstated in his position.

Judicial practice under Art. 179 of the Labor Code of the Russian Federation most often shows that enterprise managers, when dismissing employees due to staff reduction, do not evaluate their professional skills, knowledge and abilities, and this is a significant violation of the law. Therefore, the majority of highly qualified citizens are restored to work.

When the number or staff of employees is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications.

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

The collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications.

Commentary to Art. 179 Labor Code of the Russian Federation

1. Only in the case of equality among employees of business qualities will the provisions provided for in this article on the preferential right of some employees to remain at work upon dismissal on the specified grounds apply.

2. In addition to the employees listed in Part 2 of this article, preference in remaining at work is provided in accordance with the law to a number of other categories of employees.

3. Among such employees one can name, in particular:

- spouses of military personnel in state organizations, military units (see Article 10 of the Federal Law of May 27, 1998 N 76-FZ “On the status of military personnel” // SZ RF. 1998. N 22. Art. 2331);

- officials and citizens admitted to state secrets on a permanent basis (see Article 21 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets” // SZ RF. 1997. N 41. Art. 8220 - 8235);

- citizens awarded the titles of Hero of the Soviet Union, Hero of the Russian Federation or who are full holders of the Order of Glory (see Article 8 of the Law of the Russian Federation of January 15, 1993 N 4301-1 “On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory "//Russian Air Force. 1993. N 7. Art. 247), etc.

4. Other categories of employees who, with equal labor productivity and qualifications, enjoy a preferential right over other employees to remain at work may be provided for by a collective or labor agreement.

Second commentary to Article 179 of the Labor Code

1. This article has not undergone significant changes. In the content of the preferential right to remain at work in the event of a reduction in the number or staff of an organization’s employees, the Code identifies advantages at two levels. The first level includes benefits that are absolute. These advantages are available to those workers who have higher labor productivity and qualifications. The legislation does not establish any specific list of documents indicating higher labor productivity. Consequently, this legal fact is established on the basis of a cumulative assessment of the evidence. These may include data indicating the high quality of the work performed, the employee’s performance of important responsible tasks or a larger volume of work compared to employees occupying similar positions or performing work in the same profession and the same degree of complexity. In the absence of direct evidence of higher labor productivity of a particular employee compared to another employee, indirect evidence of this legal fact may also be taken into account. These may include data on rewarding an employee for high performance at work.

Qualification is proven by documents on education, advanced training, and professional retraining.

An assessment of the higher labor productivity and qualifications of an employee and a decision on the preferential right to remain at work in the event of a reduction in the number or staff of the organization's employees is made by the employer. If the dismissed employee does not agree with such a decision and considers the termination of the employment contract to be illegal, he has the right to address the labor dispute directly to the court. When considering a dispute, the court also evaluates the business qualities of the retained employee and compares them with the business qualities of the dismissed employee.

2. Second-level benefits are determined only if labor productivity and qualifications are equal. These benefits are available to: family - if there are two or more dependents; persons in whose family there are no other independent workers; employees who received a work injury or occupational disease in this organization; disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland; employees who improve their skills at the direction of the employer without interruption from work.

An employee’s dependents include any members of his family who are fully supported by him or who receive assistance from him, which is their permanent and main source of livelihood. This can be not only children, but also parents of spouses receiving a pension, as well as other family members with income, if the employee’s help is a constant and main source of livelihood for them.

The absence of other self-earning workers in the family means that receipt of various types of social benefits (pensions, benefits, compensation, various types of subsidies) by the employee’s family members should not be taken into account.

The concept of work injury is given in the Regulations on the procedure for providing benefits for state social insurance, approved by the Resolution of the Presidium of the All-Union Central Council of Trade Unions of November 12, 1984. Work injury is understood as damage to the health of an employee as a result of an accident that occurred under the circumstances specified in this normative act. Such circumstances include the following: when performing job duties, as well as when performing any actions in the interests of the organization, even without instructions from the administration; on the way to or from work; on the territory of the organization or in another place of work during working hours (including established breaks), during the time necessary to put production tools, clothing, etc. in order. before starting or after finishing work; near an organization or other place of work during working hours, including prescribed breaks, if being there does not contradict the internal labor regulations. Labor injury also recognizes damage to health as a result of an accident that occurred while undergoing industrial training (practice) or conducting educational experiments (experiments) during study; when performing state duties, as well as tasks of public organizations whose activities do not contradict the Constitution of the Russian Federation; when performing a civic duty to save human life, protect property and law and order.

The concept of work injury is much broader than such a concept as an industrial accident, when insurance payments are made to the employee in connection with damage to health in accordance with compulsory social insurance. The concept of an accident at work is given in the Federal Law of July 24, 1998 “On compulsory social insurance against accidents at work and occupational diseases” (SZ RF. 1998. N 31. Art. 3803).

An industrial accident is an event as a result of which the insured person received injury or other damage to health during the performance of his duties under an employment contract and in other cases established by this law, both on the territory of the insured and outside it, or while traveling to or returning from work. from the place of work on transport provided by the insured, and which entailed the need to transfer the insured to another job, temporary or permanent loss of professional ability. Since the term “work injury” is not used in this Law, obviously, when determining the benefits of the second level, the concept of work injury discussed above should be taken as a basis.

The rule on the preferential right of disabled people of the Great Patriotic War is not of great importance, since there are practically no workers who have reached such an advanced age. At the same time, when determining this category, one should be guided by Art. 4 of the Federal Law “On Veterans”.

The circle of people from among workers who improve their skills on the job and enjoy a preferential right to remain at work when the number or staff of workers is reduced has narrowed. Now these include only those employees who improve their skills at the direction of the employer without interruption from work. In this case, the form of training and the type of vocational education institution do not matter (see comments to Chapters 31 and 32 of the Labor Code of the Russian Federation).

3. When determining the benefits of the second level, a situation may arise when all employees belong to one or another category specified in Art. 179. Since their advantages are equal, then, apparently, preference should be given to those of them who simultaneously belong to several of the named categories. If there is no such criterion, then the employer has the right to give preference to any of these workers, and the labor dispute resolution body obviously cannot review the employer's decision.

4. In Art. 179 does not indicate many categories of workers from those provided for in Art. 34 of the Labor Code of the Russian Federation, for example, wives (husbands) of military personnel; citizens discharged from military service; persons injured in connection with the accident at the Chernobyl nuclear power plant, liquidators of the accident and some others.

The exclusion from the Code of spouses of military personnel and citizens discharged from military service does not deprive them of the preferential right to remain at work when the number or staff of employees is reduced, since this right is provided for them by Art. 10, 23 of the Federal Law of May 27, 1998 “On the status of military personnel” (SZ RF. 1998. N 22. Art. 2331). This Law also provides for this right for single mothers of military personnel undergoing conscription service (Article 23).

Citizens who have received or have suffered radiation sickness and other diseases associated with radiation exposure as a result of the Chernobyl disaster or with work to eliminate the consequences of the disaster at the Chernobyl nuclear power plant, as well as disabled people as a result of the Chernobyl disaster, have a preferential right to remain at work in the event of a reduction in the number or staff on the basis of Art. . 14 (clause 13) of the Law of the Russian Federation “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant,” as amended on June 18, 1992 (Vedomosti of the Russian Federation. 1991. N 21. Art. 699; 1992. N 32. Article 1861).

The important provision is enshrined in Part 3 of Art. 179, that the collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications. Obviously, the employer can give preference to other categories of employees specified in the collective agreement to remain at work only if there are no employees who enjoy this right by virtue of the Code or other laws.

New edition of Art. 179 Labor Code of the Russian Federation

When the number or staff of employees is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications.

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

The collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications.

Commentary on Article 179 of the Labor Code of the Russian Federation

When staffing is reduced, there is a certain order of laid-off workers. This is stated in Article 179 of the Labor Code of the Russian Federation.

It is clear that preference for remaining at work is given to specialists with higher labor productivity and qualifications. What if these criteria coincide? Article 179 of the Labor Code of the Russian Federation says that in this case, family workers have preference for remaining at work if they have two or more dependents; persons in whose family there are no other employees; employees who received work-related injuries while working for this employer; disabled people of WWII and combat; as well as employees who improve their qualifications in the direction of the employer without interruption from work.

Another comment on Art. 179 Labor Code of the Russian Federation

1. When determining the existence of this right by force of law, two criteria are taken into account in succession: first of all, the level of labor productivity and qualifications, and then a number of circumstances characterizing the personality of the employee.

As follows from Art. 179 of the Labor Code, higher labor productivity and qualifications are certainly a priority criterion in comparison with all other circumstances, the list of which is given in part two of the commented article. At the same time, one should take into account the rules of other articles of the Labor Code, which actually correct the absolute nature of the norm of Art. 179.

Firstly, it should be taken into account that the Labor Code establishes a range of circumstances in the presence of which it is prohibited to terminate an employment contract at the initiative of the employer. In particular, the dismissal of an employee (except in the case of liquidation of an organization or termination of activities by an employer who is an individual) is not allowed during the period of his temporary incapacity for work and while on vacation (see herein). In the same way, it is not allowed to terminate an employment contract at the initiative of the employer with pregnant women, women with children under three years of age, single mothers raising a child under the age of fourteen (a disabled child up to eighteen years old), other persons raising these children without a mother (see Article 261 of the Labor Code of the Russian Federation and commentary thereto).

The general prohibition of a lockout in the process of resolving a collective labor dispute, including a strike (see Article 415 of the Labor Code of the Russian Federation and the commentary thereto), also applies to cases of termination of an employment contract due to a reduction in the number or staff of workers.

Secondly, termination of an employment contract at the initiative of the employer with certain categories of employees is allowed only with the consent of the competent authority. For example, termination of an employment contract with employees under the age of 18 (except in the case of liquidation of the organization), in addition to compliance with the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors and the protection of their rights (see Article 269 of the Labor Code of the Russian Federation and a commentary thereto). As follows from the Code, dismissal in accordance with paragraphs 2, 3 or 5 of Art. 81 of the Labor Code of the Russian Federation, managers (their deputies) of elected collegial bodies of primary trade union organizations, elected collegial bodies of trade union organizations of structural divisions of organizations (not lower than shop floors and equivalent to them) who are not released from their main work are allowed, in addition to the general procedure for dismissal, only with the prior consent of the relevant superior elected trade union body (see Article 374 of the Labor Code of the Russian Federation and the commentary thereto; see also Article 376 of the Labor Code of the Russian Federation and the commentary thereto). Representatives of workers and their associations participating in the resolution of a collective labor dispute cannot be dismissed by the employer during the resolution of a collective labor dispute without the prior consent of the body that authorized them to represent (see Article 405 of the Labor Code of the Russian Federation and the commentary thereto).

Thus, in a number of cases, the guarantees established by the legislator in relation to certain categories of workers or under certain conditions, completely excluding the possibility of their dismissal at the initiative of the employer, thereby make it impossible to apply the rules established by Art. 179 Labor Code of the Russian Federation. In other cases, the possibility of terminating an employment contract with employees is made dependent on the will of a third party; accordingly, the refusal of this person to give consent to the dismissal of an employee excludes the possibility of applying the rules of the commented article in relation to him.

2. As follows from Part 2 of Art. 179, the list contained therein is exhaustive and there is no reference to other regulatory legal acts. Taking into account this circumstance, it is necessary to evaluate the rule contained in the Federal Law of May 27, 1998 N 76-FZ “On the Status of Military Personnel,” which establishes for citizens discharged from military service and members of their families a preferential right to remain at work for which they arrived for the first time when the staff was reduced (clause 5 of article 23). Since, by virtue of current legislation, in the event of a contradiction between the Labor Code and other federal laws containing labor law provisions, the provisions of the Code are applied (see thereto), this provision of the Law on the Status of Military Personnel is not subject to application until appropriate additions are made to Art. 179 Labor Code of the Russian Federation.

A similar conclusion must be drawn regarding other categories of employees for whom the preferential right to remain at work upon dismissal due to a reduction in number or staff was established by other regulations.

3. As follows from Art. 179, the categories of employees enjoying a preferential right to remain at work in the event of a reduction in numbers or staff may be determined, in addition to the law, also by a collective agreement. When defining such categories of workers, the parties to the collective agreement have the right only to supplement the content of Part 2 of Art. 179. Due to the imperative nature of Art. 179 they cannot change either the order of granting the right in question, established by Part 1 and Part 2 of this article, or the list of categories of workers specified in Part 2 of Art. 179.

In addition, when establishing, by way of collective agreement regulation, a list of persons who have a preferential right to remain at work, one should take into account the general principle of labor law: the inadmissibility of discrimination in the sphere of labor (see Article 3 of the Labor Code of the Russian Federation and the commentary thereto). Taking into account the provisions of this article, it is unacceptable to connect the establishment of this right with such circumstances as gender, race, skin color, nationality, language, origin, property, social or official status, etc. In particular, the establishment of a preferential right to remain at work in connection with membership in a trade union, including a trade union that has concluded a corresponding collective agreement, should be considered an act of obvious discrimination.

4. It should also be borne in mind that, unlike other articles of this chapter, the rules of Art. 179 apply upon termination of an employment contract with both an employer-organization (legal entity) and an employer - an individual (of course, according to the logic of things, we should be talking about employers - individual entrepreneurs).

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