Dismissal of a guardian

Can a guardian of a child under 14 years of age be dismissed due to a reduction in the organization's workforce?

The organization has begun a staff reduction procedure. One of the laid-off workers is the guardian of a grandson; the grandson is 10 years old, he is not disabled, and the child’s mother has been deprived of parental rights.

Can this employee be dismissed due to a reduction in the organization's workforce?

Having considered the issue, we came to the following conclusion:

An employee who is the guardian of a young child under the age of 14 and raising him without a mother cannot be dismissed under clause 2 of the first part of Art. 81 Labor Code of the Russian Federation.

One of the grounds for terminating an employment contract with an employee at the initiative of the employer is a reduction in the number or staff of employees of an organization or individual entrepreneur (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation).

Before the start of measures to reduce the number (staff), the employer must determine the circle of employees who will be affected by the relevant measures, and exclude from this list employees with children listed in part four of Art. 261 of the Labor Code of the Russian Federation, as well as other employees who cannot be dismissed under clause 2 of part one of Art. 81 of the Labor Code of the Russian Federation.*(1) So, according to part four of Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of 18 or a young child - a child under the age of 14, with another person raising these children without a mother , with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of eighteen or the sole breadwinner of a child under the age of three in a family raising three or more young children, unless the other parent (other legal representative of the child) is in an employment relationship, at the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5-8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of the Labor Code of the Russian Federation). The Plenum of the Supreme Court of the Russian Federation in paragraph 2 of Resolution No. 1 of January 28, 2014 explained that persons raising children without a mother may include the father, a person endowed with the rights and responsibilities of a guardian (trustee) of a minor, if the child’s mother has died , deprived of parental rights, limited in parental rights, declared missing, incompetent (limitedly capable), for health reasons cannot personally raise and support a child, is serving a sentence in institutions that carry out a prison sentence, evades raising children or protecting their rights and interests or refused to take their child from an educational organization, medical organization, organization providing social services, or a similar organization, in other situations.

In the situation under consideration, the employee is the guardian of a young child under the age of 14 and is raising him without a mother (deprived of parental rights), and, accordingly, belongs to the category of employees with whom the employment contract cannot be terminated due to a reduction in the number or staff. Under such circumstances, this employee cannot be dismissed under clause 2 of part one of Art. 81 TK

Expert of the Legal Consulting Service GARANT

www.bashinform.ru

How to change the guardian of a minor child

In parentheses, we note that it is quite difficult to distinguish between the interests of the ward and the interests of the guardian - it is possible that benefits will create additional benefits, mainly for the latter. The authorized body (guardianship body) in practice is not able to scrupulously control the targeted direction of benefits.

if the candidate does not live alone, it is necessary to obtain certificates of the health status of all those living together;
information from the trustee’s place of work;
confirmation of the absence of restrictions on freedom (certificate of no criminal record);
notarized consent of all cohabitants.

For the ward:

documents confirming his identity (certificate and passport, upon reaching fourteen years of age);
medical report on health status;
certificate from the place of registration;
data from an educational (educational) institution;
notarized consent from parents;
and other documents.

Each case is individual, and the package of documents may vary depending on the situation under consideration. Abuse of rights by parents. How much do they pay for guardianship? The legislator insists that the fulfillment by a guardian of the duties arising from this status is free of charge - exceptions to this rule are separately stipulated in the legislation. These do not include receiving benefits and other payments related to the implementation of guardianship - such benefits are to be used exclusively in the interests of the person under guardianship. The authorized bodies, by virtue of their powers, exercise control over the targeted expenditure of the amounts received. The paid nature of the legal relationship is possible when guardianship is provided by a foster family. An agreement is concluded with a family member, the essential condition of which is monthly payment - i.e. in fact, we are talking about providing guardianship services.

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Lawyers' answers (1)

Hello. Your dismissal due to redundancy is illegal.

“Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on December 30, 2015) Labor Code of the Russian Federation, Article 261. Guarantees for a pregnant woman and persons with family responsibilities upon termination of an employment contract

Termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without a mother, with a parent (another legal representative of the child) who is the sole breadwinner of a disabled child under eighteen years of age or the sole breadwinner of a child under three years of age in a family raising three or more young children, if the other parent (other legal representative of the child) is not employed relations, at the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of this Code).

You are not exempt.

Client clarification

Thank you very much! Everything is fast and clear.

13 May 2021, 10:41

Lawyers' answers (1)

Article 179 of the Labor Code of the Russian Federation establishes that when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications.

If labor productivity and qualifications are equal, 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 permanent 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.

Within the meaning of Art. 179 of the Labor Code of the Russian Federation, the preemptive right is examined in the event that not all positions are eliminated, that is, it is necessary to select from several employees those who will have such a right.

In accordance with Part 1 of Art. 180 of the Labor Code of the Russian Federation, when carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid work that the employee can perform taking into account his state of health.

Lawyers' answers (1)

I have two children, the third is under guardianship. I'm married. Guardianship is available, I am the only guardian. Can I be laid off? Elena

if the children are under 14 years old and the husband does NOT work, then they cannot lay off (Article 261 of the Labor Code)

Termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without a mother, with a parent (another legal representative of the child) who is the sole breadwinner of a disabled child under eighteen years of age or the sole breadwinner of a child under three years of age in a family raising three or more young children, if the other parent (other legal representative of the child) is not employed relations, at the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of this Code).

if it works, then they can, BUT you have a preferential right to remain at work (Article 179 of the Labor Code) in comparison with colleagues who have equal productivity and qualifications with you

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.

In what cases can you obtain guardianship of a child with living parents?

Important! A grandmother cannot be a guardian of a child if her age is over sixty years old at the time of registration or she has limitations in legal capacity

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Although the law does not say anything about the age limit, in practice adult guardians are treated with special attention

How to formalize guardianship of a child with living parents Registration of guardianship/trusteeship with living and fully capable parents is possible only with their voluntary consent, which must be notarized if it is impossible to be present in person. Guardianship/trusteeship must be registered at the place of residence of the ward.

Citizens who are not experienced in jurisprudence mistakenly believe that the exercise of guardianship duties gives them any rights in relation to the property (in this case, living space) of a minor. This is a deeply erroneous idea. The institution of guardianship does not provide for the emergence of property rights (ownership rights or permanent perpetual use).

The right of the guardian to live in the living space of the ward (if it is due to a specific situation) ends at the moment of termination of the legal relationship. In accordance with the legislation, the guardian does not have the right to dispose of the child’s property (since there is no right of ownership) - in particular, he cannot sell (donate, mortgage, exchange) the ward’s apartment.

They won't drive us away

A reduction in staff or number of employees is a legal reason for terminating an employment contract at the initiative of the employer, Rostrud explained to RG-Week. It is provided for in paragraph 2 of part one of Art. 81 Labor Code of the Russian Federation. If an employee falls under this “sword of Damocles,” there is, as a rule, nothing to oppose to the authorities. And yet, for some categories of workers, the Labor Code provides for increased protection measures. Which ones exactly - Rostrud experts explain.

Who should not be “redundant”?

Termination of an employment contract is not permitted:

if the employee has a child under three years old;
if an employee is raising a child under 14 years of age alone, and if the child has a disability, then the age increases to 18 years;
if the employee has a large family (three or more young children), incl. a child under three years old or a disabled child, and the other parent does not work.

In addition, workers who are members of a trade union can be dismissed only with the agreement of the primary trade union organization (part two of Article 82 of the Labor Code of the Russian Federation).

Important: it is not allowed to dismiss an employee due to staff reduction during his illness or vacation.

How is the selection of employees to be laid off?

The law requires that when making redundancies, the employer retains workers with higher qualifications and higher labor productivity (part one of Article 179 of the Labor Code). In reality, of course, this does not always happen. But at least this requirement, enshrined in the Labor Code, can serve as a basis for an employee to defend his rights in court. If, of course, he can prove that he works better and with greater productivity than those who remained on staff.

If you have to choose between employees who have approximately the same professional qualities, the employer is obliged to give preference to:

family with at least two dependents (for example, two young children or one child and a disabled spouse);
workers - the only breadwinners in the family;
employees with disabilities, if an occupational disease or injury that led to disability occurred at this enterprise;
combat disabled people;
employees sent for on-the-job training.

How does the reduction happen?

The employee is notified of dismissal two months in advance, against signature. If he agrees, the employment contract can be terminated earlier, while the employee receives additional compensation in the amount of the average salary for “unfinished” days.

Important: dismissal due to staff reduction is allowed only if it is impossible to transfer the employee with his written consent to another vacant position or work (both corresponding to the employee’s qualifications and a lower position or lower paid job), which the employee can perform taking into account his state of health . The employee must be offered all available vacancies.

What does a “redundant” employee get?

severance pay in the amount of the average monthly salary;
the average salary is maintained for the duration of employment, but no more than two months from the date of dismissal.

It is important to know: if an employee contacts the employment service immediately after dismissal (no more than two weeks from the date of termination of the employment contract), and they could not find a new place for him, then the average salary can be retained for another one (third) month.

How to get money for the second and third months?

The dismissed employee must present the employer with a work record book to confirm that he did not get a job, as well as a passport. To receive money for the third month, you must also submit a decision from the employment service agency.

When is the money paid?

All money due to the employee is paid to him on the day of dismissal. On the same day he is given a work book.

Important: if the employee and the employer cannot agree on the amount of payments, in the event of such a dispute, the employee is paid the undisputed part of the amount.

How to go to court if there is a conflict?

This can be done within three months from the day the employee’s rights were violated. For disputes about dismissal, the period is one month from the day the employee received the dismissal order or work book (part one of Article 392 of the Labor Code of the Russian Federation). The court may accept the statement of claim later. You just need to present documents confirming that the delay was due to a valid reason, for example, due to illness.

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Legislation

All legal relations between an employer and an employee of an enterprise who sign an employment agreement are regulated by the Labor Code of the Russian Federation.

According to Article 261 of the Labor Code of the Russian Federation, dismissal is not allowed:

employees raising disabled people under 18 or children under 14;
the sole breadwinner of a family in which three or more minors live.

According to the Plenum of the Supreme Court No. 1 of 2014, a number of benefits are provided to single mothers.

Citizens raising children without the participation of a mother (father, guardian, adoptive parent) have the same labor rights as mothers who raise children without a husband. So is it possible to make the guardian redundant?

Article 179 of the Labor Code of the Russian Federation states that in case of layoffs, priority is given to highly qualified specialists, employees with extensive work experience and labor productivity. But the employee’s marital status and the presence of dependents must also be taken into account. Consequently, an employee who cares for young children or disabled people under 18 years of age, who took a job after his colleague with higher qualifications, has an advantage over him in the event of layoffs.

Working pensioners do not belong to categories of citizens with special labor privileges, but real grounds are required for their dismissal.

We list the possible benefits provided to employees raising children:

leave to care for a child under three years of age (can be received by the father or another person replacing parents);
additional time for the employee, designed to feed the baby (included in working hours);
no forced business trips;
an employee who provides care for a disabled child is given additional days off upon request;
An employee who is raising two or more children under 14 years of age or minors (under 18) with disabilities is given additional leave of up to 14 days.