1,618 children per woman
According to Rosstat, a preliminary estimate of the total fertility rate, based on data for January - August 2021, is 1.618 children per woman.
In 2021, the total fertility rate dropped to 1,762 children per woman. During the year, 53 thousand fewer children were born than in 2015. Nevertheless, according to this indicator, Russia is among the top ten European countries with the highest birth rate and ranks first among European countries in terms of the annual growth rate of the birth rate over the past five years. The Labor Code in Russia allows a woman with a child under three years of age to keep her job, regardless of what happens in the company. During the period of maternity leave, you cannot fire or lay off an employee, or hire another person in her place on a permanent basis. Only a massive staff reduction due to the liquidation of a company or the closure of an enterprise can cause the dismissal of “maternity leavers” or women with children. The employer is obliged to notify the employee in writing of the layoff at least two months in advance and not to open a layoff position for a year. In addition, the dismissed person can count on monetary compensation - up to three months' salary.
After an employee returns from maternity leave, the employer is obliged to provide her with the position in which she worked before going on leave. Or offer her a transfer to another position with a salary no lower than the previous one. According to the labor legislation of the Russian Federation, the employer has no right to refuse to hire the employee back.
Some government agencies, in order to avoid encountering “maternity leavers,” immediately warn potential employees during interviews that while working in the ministry they will not be allowed to become pregnant or go on maternity leave. Otherwise, their contract will simply not be renewed.
Despite the fact that Russia provides for criminal liability for the illegal dismissal of an expectant mother or a mother with children under three years of age, the “Employment Rating” of Banki.ru is replete with complaints about banks that get rid of such employees.
Can an employer hire a newcomer instead of a dismissed core employee, so to speak, “from the street”?
If the main employee returned from maternity leave and then quit, then the employer has grounds for dismissing temporary workers with whom employment contracts were concluded for the period the main employee was on leave.
If the main employee did not return from vacation and the dismissal was carried out during the vacation period, then the employer will not be able to hire a new employee, since there are no grounds for dismissing fixed-term employees. This means that we will have to decide on replacing the main place with one of them.
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As we can see, concluding a fixed-term employment contract for the period of absence of an employee, who retains his place of work, gives employers a lot of headaches. But since the situation in question does not have legislative permission, the employer independently determines which employee to hire to replace the main employee who resigned. And it’s better to resolve all these issues with employees amicably. Well, if it was not possible to reach an agreement, then only the court can evaluate the correctness of the decisions made or their erroneousness.
“Pregnant employees are not needed in the office”
“Before joining Gazprombank, I underwent surgery, so my first pregnancy is very difficult.
Presenting a medical certificate from the hospital confirming my transfer to light work, I approached the manager with a request to shorten my working hours and reduce the production rate. To which the manager replied that he did not need pregnant employees in the office. He said that he would fire me in any way, and if I wrote an application for light work, he would “bring me to dismissal of my own free will.” I refused to write a statement of my own free will. In response to this answer, the office manager said that since I myself did not want to leave, he would take the main employee, in whose place I was hired, out of maternity leave ahead of schedule (despite the fact that her child was not yet 1 year old) and would fire me. in this way,” writes a former employee of Gazprombank. “On May 23, when I went to work, I was handed a “Dismissal Order.” The office staff and I asked to find me another place of work (according to Article 261 of the Labor Code of the Russian Federation). At that moment, employees were required from Krasnogorsk, Korolev, Novorizhsky and other branch offices. But the team’s request, like my statement, remained unanswered (hereinafter, the spelling and punctuation of the authors of the reviews are preserved. - Note Banki.ru),” she notes.
As a result, the employee was fired. She now plans to go to court to appeal the bank's decision.
Gazprombank reported that the complaint was untrue. “The said employee was fired a year and a half ago in full compliance with the Labor Code of the Russian Federation, and until now we are not aware of his attempts to challenge this decision in court,” the bank’s press service said.
Who will fill the vacant position?
Since both employees were hired under fixed-term employment contracts for the period of absence of the main employee, who is on maternity leave, there is no priority in the question of who will now be the main employee.
This issue is not regulated by law. It would be more logical for the place of the main employee to be taken by a woman who was the first to be hired under a fixed-term contract to replace the absent one. However, she is on maternity leave and, most likely, as practice shows, she will follow him on maternity leave. Therefore, it is logical that the employer will resolve the issue at his own discretion.
For your information
For the purpose of effective economic activity and rational management of property, the employer independently, under his own responsibility, makes the necessary personnel decisions (selection, placement, dismissal of personnel) (clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation Federation").
In our opinion, the following option is optimal. The employee with whom the first fixed-term employment contract was concluded and who is currently on maternity leave must be offered to switch to permanent work, that is, to conclude an agreement with her in accordance with Art. 72 of the Labor Code of the Russian Federation, which recognizes the condition on the term of the employment contract as no longer in force. There is no need to draw up any order. There is also no need to correct the employment order. An entry on the transformation of a fixed-term employment contract into a contract for an indefinite period is not made in the work book. With the second employee, who is also working under a fixed-term contract, we also propose to conclude an agreement to amend the employment contract, according to which the term of her contract will end when the first employee returns to work from maternity leave.
In our opinion, such an arrangement will not violate the rights of any of the conscript workers: the first continues to be on maternity leave and the employer does not fire her, and the second works until she returns from leave, that is, she actually works under the same conditions as and got hired.
However, the second employee may not agree with the changes. But in this case, only the court will put an end to the dispute.
If you take a second conscript instead of the main employee, then what should you do with the employee who will return to work after the end of maternity leave? She will have no grounds for dismissal.
"If you stay, I won't let you live"
“I work at Sberbank, and I’m currently 3 months pregnant.
On July 12, 2017, my manager called me for a conversation in which she said that I had to write a letter of resignation. She explained this by saying that I did not fulfill the plan, that because of me she was not promoted or paid bonuses, and that I was to blame for all her failures. I am an enemy of the people who needs to be gotten rid of, I am interfering with her work. If I do not write a statement of my own free will, she will fire me under the article - a violation of job descriptions! In my presence, a call was made to the HR department on her mobile phone, where she said that she needed to draw up 3 acts with violations against me, and then I could be fired while pregnant. When I quietly and modestly said that, according to the law, a pregnant woman cannot be fired, she began to shout and threaten me. Her words sounded like this: “How dare you talk to me about the law, Yulia started talking about the law, I called the HR department, and they said that you can fire pregnant Yulia! “Afterwards she added: “If you stay, I won’t let you live. I will fire you under the article, you will be on the black list, no one will need you!” — writes a Sberbank employee. According to her, the manager gave her 30 minutes to write a letter of resignation of her own free will.
“On the same day, a meeting was held where our leader announced to all employees that I was an enemy of the people! That I inserted a knife into her back, and so that my leg would no longer be in the department! When I was in the ambulance, she called me and said: “I wish you to remain on sick leave as long as possible!” I am an average employee, and I rarely fail to fulfill the plan! Now my priority is pregnancy, and don’t get me wrong - my child is more precious to me! Many women on maternity leave worked under me and they also did not make a plan; they were not asked to write a statement for this. Everyone calmly went on maternity leave!” - she writes on the Banki.ru portal.
Also, the Service Rating receives many complaints about Sberbank regarding the timing and amount of payment of maternity benefits and monthly child care benefits.
The press service of Sberbank commented on the complaints of employees.
“Indeed, the Banki.ru portal receives requests from employees on maternity leave and parental leave for up to one and a half years. The questions are related to the norms of the current legislation, according to which the bank is a participant in the project of the Social Insurance Fund of the Russian Federation “Direct Payments”. From 2021, employees of all territorial banks (except for the Moscow Bank and the Central Office) are paid benefits by the territorial branches of the Social Insurance Fund independently, and not by the employer,” the Sberbank press service reported.
“We inform employees on vacation about the changes via SMS notifications and by phone, issue reminders when going on vacation and provide written consultations. We promptly respond to every request on the Banki.ru portal and within three working days we resolve the situation raised by an employee who is on parental leave,” the bank said.
The press service also emphasized that interaction with employees of the socially protected category takes place in strict accordance with the labor legislation of the Russian Federation. They retain all rights and guarantees provided for by the Labor Code of the Russian Federation. In addition, during the period of maternity leave, they retain their previous place of work. Social programs of regional banks provide for the provision of financial assistance to employees upon the birth of a child.
What is the complexity of the situation?
If an employee on parental leave resigns without leaving the vacation, a difficulty arises: it turns out that there are no grounds for terminating the employment contract with temporary employees.
That is, it is impossible to dismiss an employee who is on maternity leave (the first temporary employee) and an employee performing work under a fixed-term contract (the second temporary employee), since the event with which the law connects the expiration of the employment contract is going to work the main employee - has never happened and will not happen again. Let us note that establishing the fact of the actual return to work of the main employee in connection with the early end of parental leave is legally significant for the correct resolution of cases of reinstatement of employees dismissed under clause 2, part 1, art. 77 of the Labor Code of the Russian Federation (Appeal ruling of the Novosibirsk Regional Court dated August 25, 2016 in case No. 33-8531/2016). At the same time, the courts almost always investigate this circumstance and, if such a fact is established, reinstate dismissed conscripts.
The question of transforming the employment contracts of replacement employees (from fixed-term to indefinite) according to the rules of Part 4 of Art. 58 of the Labor Code of the Russian Federation also cannot be resolved, since, again, there is no event with which the expiration of the contract is associated.
It turns out that it is impossible to dismiss female employees who have fixed-term employment contracts during the absence of an employee who retains his job.
For your information
If the main employee had returned from maternity leave for at least one day, for example, on the day indicated in the resignation letter as the last working day, then the employer would have every reason to terminate fixed-term employment contracts, including with a woman on maternity leave, unless she has asked in writing to extend the contract until the end of the leave. And this allows her to do Art. 261 Labor Code of the Russian Federation.
“They try not to touch pregnant women too much”
“It is possible to legally dismiss an employee who is on maternity leave only upon liquidation of the organization.
Even if you reduce her position or reorganize the company, she remains on staff. In practice, employers, as a rule, force you to write a statement of your own free will, inviting the employee to take a position after a layoff that she obviously will not agree to. In this case, it is worth demanding that the employer document all his proposals and then go to court. In court, it is necessary to prove that the reason for dismissal is pregnancy or maternity leave, and not the economic need of the enterprise to reduce the position. It is also worth pointing out that the proposed duties are intended to force people to refuse work. In such cases, the courts often side with the plaintiffs, so you can safely seek judicial protection,” comments Vladimir Starinsky, managing partner of the Starinsky, Korchago and Partners bar association. “Pregnant women, of course, can be fired for gross violation of labor duties. But usually they try not to touch them again, because they are very hemorrhoids to deal with. The court is almost always on their side. And some women on maternity leave actively take advantage of this,” notes Tatyana Pavlichenko, project manager for organizational development and personnel management at Banki.ru.
How to get rid of an employee legally
“Most often, dismissal is formalized either by agreement of the parties or at one’s own request.
This is due to the fact that workers in most cases are afraid of dismissal under the article or are simply not ready for legal proceedings. At the same time, the grounds for dismissal at the initiative of the employer are clearly set out in Article 81 of the Labor Code of the Russian Federation,” comments Vladimir Starinsky. If the employee does not want to resign of his own free will, there is an option to terminate the employment contract by agreement of the parties (Article 78 of the Labor Code of the Russian Federation), notes Roman Alekseev, head of the legal department of Castle Family Office in Russia and the CIS. True, there are exceptions.
“Are you not a Russian person?”
“On May 30, 2021, I got a job at Raiffeisenbank, in the mortgage lending department, which I was very happy about, until I encountered a number of difficulties.
The first two months, to be honest, it was difficult, then my colleagues began to help me, I figured everything out, and everything seemed to fall into place. On August 30, my probation period ended, I joined the team, and I exceeded the sales plan. On the same day, August 30, my supervisor returned from vacation. A week passed, after which she called me and announced that I had not passed the probationary period, so I had to write a statement of my own free will. I was dumbfounded by this message and said that I would bring a statement tomorrow. The manager was glad that I agreed, promising to help me with subsequent employment with recommendations, and asked me not to tell anyone about our conversation with her. That evening I consulted with my relatives, read the articles of the Labor Code of the Russian Federation, and I felt very upset that a bank with such a big name treated me so badly. The next day, I decided to talk to the manager about why I was not notified that I had failed the probationary period no later than three days before it ended. Why, in the end, did I not receive reports of failure to complete the probation period? To which she replied that this happened because she was on vacation and that I should thank her for this, that they gave me the opportunity to work longer. After which I said that I refuse to write a letter of resignation of my own free will, since this is not my desire. To which they told me: “Do you want war? There will be war for you! I am now calling HR, they will draw up reports against you, and you will be fired under the article. What, are you not a Russian person? Don’t you understand that no one will work with you in this bank? You apparently talked to the wrong people yesterday, go talk to them again and think about it.”
To which I said that I don’t want war and that I also don’t want my rights to be violated. The answer was: “The HR department will pin you down in one day, and you won’t work here. This is not the first time, ask anyone! The girl worked for us for a year, and she was fired in one week. So nothing and no one will help you here, you just don’t understand what situation you’re in. So tomorrow I call the HR department, we have something to “sew” for, and you will leave. And then you won’t be able to get a job anywhere. You will go to court, and in court you will prove that you were fired incorrectly,” said one of the former Raiffeisenbank employees.
After such threats, the girl was forced to write a letter of resignation and find a new job as soon as possible.
Warn temporary employee
A citizen who temporarily holds the position of an employee who is on sick leave, in this case, receives notice of the upcoming dismissal.
There is no obligation to comply with any deadlines. He can receive it even one day before work. In such a situation, a two-week working period.
Dismissal due to the departure of the main employee is carried out on the basis of the second paragraph 77 of Article of the Labor Code of the Russian Federation. A reference to this legislative act is indicated in the issued order.
In the “work information” column, you must indicate the reason for termination of the employment contract: “Dismissal is carried out in connection with the expiration of the document’s validity period.” In addition, a similar note is made in the citizen’s personal file, which remains with the employer.
The Labor Code does not provide a specific mechanism of action that must be used if a temporary worker is to be dismissed due to the main employee returning from maternity leave and parental leave. But tools and a general protocol are proposed, including 6 stages.
Regarding people on maternity leave, the legislation does not impose requirements on them regarding the time frame within which a full-time employee is required to write an application before actually going to work. He can do this the day before. There is a human factor when it comes to hiring a replacement specialist.
Based on the application submitted by the woman on maternity leave (the approved form and sample are in the personnel department), employees of the responsible department issue an order, which includes:
- reason for leaving (end of parental leave or early termination at your own request);
- the actual date from which it is planned to assume official duties;
- working hours, according to the staffing schedule, job description or internal agreement with the employer (full/reduced work shift/week);
- distributing instructions, including to the accounting department, to include a specialist who has returned from long-term leave on the payroll list.
After the order has been agreed upon and signed by the management of the enterprise, the main employee gets acquainted with it against signature.
The technology for concluding or terminating an employment relationship presupposes the general procedure approved by Article 84 Part 1 of the Labor Code of the Russian Federation, which has a sequence of operations:
- An order to dismiss a temporary employee is issued in the prescribed form with the assignment of an internal number. Familiarization with it occurs by painting.
- Entering information about termination of contractual relations in the personal card of a temporary employee. It is stored in the employer's database.
- Entering information about the order number and the article of dismissal in the employee’s work book. Upon completion of the formal procedure, it is transferred to his personal use.
Due to the fact that payments to employees are made monthly, even in a situation of sudden dismissal, the subordinate will receive accruals for the time actually worked, according to the exit schedule, and compensation for unused vacation. Other subsidies are inappropriate here.
The transfer of funds to the bank account of the dismissed person occurs on the last working day, which is also the date of termination of the contract. During the same period, the former employee is given a work book. It is also worth noting that the regulations do not provide for working out.
The law allows the hiring of temporary employees to replace the main ones who are absent from the company for some reason. This happens, for example, in the case of a long-term illness, maternity leave, training or long-term business trip of a worker. At the same time, the people hired to replace them officially acquire temporary status. This is expressly stated in the fixed-term employment agreement concluded with them.
If a temporary employee is hired not “off the street”, but through an internal transfer, then the written consent of the transferred employee is sufficient for this. However, in emergency situations, transfer without consent is allowed - based on an order from management.
It should be noted right away that the person who was hired instead of a maternity worker is a temporary worker, with whom an employment contract is also concluded, but a fixed-term one (Article 59 of the Labor Code of Russia), and not an indefinite one.
The period is set, of course, in accordance with the maternity leave of the main employee without indicating the exact date, but simply with the words, for example, “for 3 years.”
This should be done because maternity leave can be extended, but every maternity leaver has the right to go to work at any time, even without prior notice to her employer.
We invite you to familiarize yourself with: Restrictions on penalties and fines that may be charged to MFOs || The amount of interest on the overdue principal debt
Money for settlement agreement
Often, the person being fired will receive a certain amount from his former employer as a guarantee that the conflict will not go further or that the former employee will not steal clients from the company.
The size of the amount depends on the importance of the position of the dismissed person and his access to information or the company’s customer base. In practice, such an agreement still carries some risks for the employer. A dismissed employee can challenge such a document in court and find it illegal due to the lack of his own will.
All other options are quite complicated for the employer, so they are used only if the separation “amicably” did not work out. There are often cases when a person is threatened with dismissal “under the article”. However, this is an undesirable development for the employer. In practice, the courts often side with the employee.
One of the legal ways to fire an employee is to issue a job description. “In accordance with the instructions, he must be given tasks, preferably written ones, so that their failure to complete them can later be proven in court. The problem is that he may not do the job “very well” and in this case problems may arise in court. But gross violation of labor duties three times in a row is followed by dismissal. If the employer tries to assign impossible job descriptions, the employee may not agree with them. But he will have to prove why they are impracticable,” notes Tatyana Pavlichenko.
Order
An order for early termination of an employee’s vacation is drawn up by the manager after receiving the application.
The contents of the document must contain the following information:
- the fact of being on vacation;
- the day on which the employee wishes to return to fulfilling job obligations;
- preferred work schedule (employees returning from parental leave early have the right to choose a part-time work schedule);
- a decree for the accounting department that the employee must be paid a salary.
By staff reduction
Also, in order to fire a person, the employer can justify the dismissal by staff reduction (clause 2 of Article 81 of the Labor Code of the Russian Federation). However, it is quite difficult to carry out this procedure in compliance with all established requirements, therefore such cases of dismissal have been repeatedly declared illegal in court with the subsequent reinstatement of the employee in his position. First of all, he needs to be given work options according to his competence. This may be a similar position, but in a different department of the organization. If this requires the employee to move, he can refuse, which will definitely need to be recorded in writing. In addition, the company is obliged to warn the employee in writing about the layoff at least two months in advance. At the same time, the reduced position cannot be restored within a year, notes Roman Alekseev from Castle Family Office in Russia and the CIS.
Habitual truant
Also, a one-time gross violation, in particular absenteeism (subparagraph “a” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation), can serve as a legal basis for dismissal.
A truant worker is considered to be an employee who does not appear at work for the entire working day or for more than four hours in a row. It is harder to fire an employee for frequent tardiness. The company's internal labor regulations, detailed in the employment contract, can help here. In practice, such dismissal requires strict compliance with all established requirements and document flow. At the request of a dismissed employee, the labor inspectorate can check the employer and recognize the order of dismissal for absenteeism as illegal. For example, the employer did not require a written explanation from the dismissed person regarding his absence from the workplace, and did not provide other evidence confirming his absence without good reason. Thus, errors were made in the procedure.
Certificate of "immaturity"
A rather exotic option (especially in commercial organizations) is unsatisfactory certification results (subparagraph “b” of paragraph 3 of Article 81 of the Labor Code of the Russian Federation).
It should be noted that in this case, the employer must approve the local certification act in advance and be sure to give employees time to prepare. Next, a certification commission is created. However, after following the entire formal procedure and justifying the employee’s inadequacy for the position held (in fact, the employee has the right to receive several attempts to be certified), the employer is obliged to offer him another place in the company (Part 3 of Article 81 of the Labor Code of the Russian Federation). In addition, certification cannot be carried out in relation to any specific employee. As a result, other employees of the company may also be fired. All of the above is fully appropriate only for those companies that work “in the dark,” Roman Alekseev emphasizes. For other employers, an effective (albeit illegal) means of influence is a real threat to stop paying the “unofficial” part of the salary if the employee does not want to leave on good terms. However, in this case, everything depends on the position held by the unwanted employee and his access to internal company information. A dispute that escalates and goes beyond the walls of such a company can lead to unwanted attention and inspections from the competent authorities.
