The grounds on which anyone can be dismissed?
Onlíner.by continues to answer readers’ questions in the Employee Rights section. This time, the editors analyze the stories from the point of view of the law, which ultimately boil down to one thing: “If the employer decides to change the essential working conditions, then the employee has no choice?” Some of employees had their salaries lowered, others were transferred to a part-time job, and others were offered to work in another city. And most often the deterioration of working conditions affected women with small children.
“It seems that under this article any inconvenient person can be dismissed”
One of the readers worries about a friend of hers has a child under three years of age. Recently, her boss decided to shorten her working hours and lower her salary.
– The employer suggested that she should sign an agreement on the amendments to the essential working conditions, involving a transfer to a part-time job (from a full-time rate to 0.5 rate) and a salary reduction. This was justified by the fact that the company fell under sanctions and is not in the best economic situation, – the reader describes the situation.
According to the reader, this is how a woman on maternity leave is forced to quit, because there are very few grounds for this in the law. One of them is disagreement to work when the essential working conditions are changed.
– It turns out that if the employer cannot dismiss the mother with the child on his own initiative, then he shifts it to the employee by changing working conditions. If the employee does not sign the agreement, she will be fired. After all, it is clear that the salary will be reduced by half, the working mother will not have enough money and she will have to quit. So, it turns out that this is a simple tool for dismissal. Can’t anything be done with that?
Reader Evgeniya is sure that the main reason for her transfer to a part-time position is the biased attitude of the management.
– I did not go on maternity leave and went to work as soon as the sick leave for pregnancy and childbirth ended, that is, I have been working for about a year after the second birth. I have two minor children – 10 years old and 1.3 years old; I am raising them alone since I’m divorced, – says Evgenia.
The other day, a woman received a warning about a change in essential working conditions, which the authorities justified by Resolution No. 700 of the Council of Ministers (the one that banned the import of goods from “unfriendly countries” into Belarus).
– Everything was presented to me in such a way that my workload is reduced. Well, in our company, in connection with this Resolution, the workload of other employees is also reduced, but they were not offered significant changes in working conditions. Now I get the feeling that under this article any inconvenient person can be fired, even someone who should be protected by law: pregnant women, mothers with small children, etc. Yes, it is difficult to prove the biased attitude of the management towards me. But I would like to understand how it works? It looks like an employee can be offered to work at 0.1 rate at any time, but if you don’t agree – just get out.
Another reader named Natalya has a similar situation, but she did not work on maternity leave. A three-year leave ends in March, and recently a mother of many children had not very good news: she can return only for 0.25 of the rate.
– Before maternity leave, I worked as a full-time teacher, taught life safety and social science, but now they offer me only 5 hours a week, and this is only 0.25 of the rate, – says Natalya. – The head teacher justifies this by the fact that I am registered as a life safety teacher, and now we have only 5 hours of safety education in the curriculum. They refuse to increase my workload at the expense of class management and other subjects, although other teachers include students and pensioners. I ask you to clarify whether my boss is acting legally and how I should act in this situation.
What are the essential working conditions and when can they be changed?
The topic is controversial and for many quite painful. First, the list of essential working conditions is open. This includes changing the working hours, guarantees to the employee, the system of remuneration, the amount of payment (except for increasing its amount), and other conditions.
In practice, changes in the essential working conditions also include a transfer from an open-ended employment agreement to a contract.
However, it is impossible to simply take and change the working conditions for an employee; for this, the employer must have good reasons. In accordance with Part 1 of Art. 32 of the Labour Code, such changes must be justified by industrial, organizational or economic reasons.
Hence, the second problem: there is no definition in the legislation of what “reasonable production, organizational and economic reasons” are. However, examples are indicated in Part 2, Clause 20 of the Resolution of the Plenum of the Supreme Court No. 2: rationalization of jobs, changes in equipment and production technology, introduction of new forms of labour organization.
Judicial practice added here the redistribution of the load on structural divisions; increasing labour productivity and strengthening the motivation of employees by changing wages; changes in the work and rest regimes of employees in order to reduce the cost of production (for example, transfer to work at night).
What is a notice period in case of a change in the essential working conditions?
The notice period for employees has changed several times. Initially, the Labour Code set a minimum period of one month. Then a decree was issued that reduced this period to 7 days (decrees in Belarus are considered to be stronger than laws and codes). In 2020, the seven-day term was again replaced by a month term.
From April 26, 2020, another decree gave employers the right to change the essential working conditions of an employee due to “reasonable reasons for the adverse impact of the epidemiological situation on the activities of the employer”, having informed the employee thereof in writing no later than one calendar day before the changes. The exception is a reduction in wages.
During this period, the employee has to decide whether he/she agrees to work under the new conditions. The expiration of the period for informing the employee of changes in the essential working conditions starts on the day after the date the employee receives the notice and ends at the end of a month term (Part 1 of Article 10 of the Labour Code).
It is prohibited to force an employee to immediately respond to a notice.
Can pregnant women and mothers of small children also be dismissed?
Yes, it is not prohibited by law; however, it is necessary to study each case individually.
– Dismissal under this clause refers to the grounds on which it is allowed to dismiss pregnant women and women who raise children under three years of age. Another question is how justified such a dismissal is. The employer has the right to change the essential working conditions for the employee in accordance with Art. 32 of the Labour Code. At the same time, he must notify the employee of the changes in writing at least a month in advance and offer to sign a supplemental agreement on new working conditions. A notice must contain specific reasons for changing the essential working conditions, but not a vague “due to the difficult economic situation” or “due to production reasons”, – explains lawyer Svetlana Semenikhina.
In addition, if the whole department has problems, and only the employee with children is dismissed, the court may agree that this dismissal is not caused by necessity.
– Let’s say, the company really has a decrease in sales due to sanctions. In the sales department, in addition to a woman with a small child, there are five more employees – it is logical that the new conditions will apply to everyone. If such a transition was offered only to this employee, it makes sense to think about its legality. It is the same if a person is fired because of his/her refusal to work part-time, and after a short time another full-time employee is hired instead of him/her. Within a month after the dismissal, the employee has a right to challenge such a decision in court, – explains Svetlana Semenikhina.
What guarantees do the dismissed employees have?
So, the employee has two options: to agree to new working conditions or to leave under clause 5 of Art. 35 of the Labour Code. Reason for dismissal under clause 5 of Part 2 of Art. 35 of the Labour Code says: “an employee’s refusal to be transferred to work in another area together with the employer; refusal to continue work in connection with a change in essential working conditions, as well as refusal to continue work in connection with a change in the owner of the property and (or) reorganization (merger, accession, division, separation, transformation) of the organization, leasing or transferring the property complex of the organization in trust management of shares (shares in the authorized capital) of the organization.
Make sure that this particular article is indicated in the order of dismissal and employment record book. In case of “agreement of the parties” you will not receive compensation and you will not be able to prove anything in court.
If a person refuses to continue working under the new conditions, he/she shall be provided with a severance pay in the amount of at least two weeks of average earnings. If a person does not agree to work on a part-time basis (less than 0.5 of the rate), he/she must be paid at least one average monthly salary (Part 4 of Article 48 of the Labour Code).