Dismissal on maternity leave at your own request

When is it possible to dismiss an employee on parental leave?

The employer cannot initiate the dismissal of such an employee (Part 6, Article 81 of the Labor Code of the Russian Federation). However, there are other acceptable ways in which you are allowed to break off relations with him:

• the term of the fixed-term employment contract has expired if there are no vacancies (Part 1 of Article 79 of the Labor Code of the Russian Federation);
• the desire of the employee himself (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).
• termination of labor relations by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);
• liquidation of an enterprise (clause 3 of Article 261 of the Labor Code of the Russian Federation).

How to fire a maternity leaver by agreement of the parties

For employers, this is often the only possible option to terminate the employment relationship with an employee on maternity leave.
Dismissal is formalized under clause 1 of Art. 77 Labor Code of the Russian Federation. No processing is required. The dismissal procedure can be divided into several stages:

• One of the parties decides to terminate the employment contract. If the initiative comes from the employer, he sends the employee a notice in any form, which indicates all the conditions for dismissal.
• Negotiations are held at which the parties agree on all terms of termination.
• An agreement between the parties is drawn up in two copies. The document spells out all the points that were agreed upon.
• The employee responsible for personnel records issues an order to terminate the employment contract.
• On the day specified in the agreement, all necessary payments are made (for unused vacation, compensation and other “severance” payments).
• Fill out a work book with the wording: “The employment contract is terminated (terminated) by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.”

Rights of women and children

Legal relations between workers and employers are regulated by the Labor Code of the Russian Federation. Working women who are pregnant should rest more time. When the second and third trimester of pregnancy comes, it becomes more difficult for them to perform their responsibilities. Many of them are beginning to wonder whether it is possible to resign during maternity leave at their own request.

Doctors strongly advise not to go to work after 7 months . During this period, it is important to ensure complete rest and be under strict supervision from medical professionals. According to the legislative acts of the Russian Federation, women have the right to apply for sick leave in order to go on temporary maternity leave. The supervising doctor can provide appropriate referral.

Vacations have their own requirements and rules. The duration of sick leave cannot exceed 140 days. Of these, half of the period involves the time before the birth of the child and childbirth. The rest is baby care. In exceptional situations, the duration of maternity leave can be increased by 55 days. Mothers who raise their children on their own fall into a separate category. Employers cannot terminate the employment relationship with such workers for a long time.

Dismissal during maternity leave at your own request

Employees on maternity leave rarely express a desire to sever their employment relationship. In this case, the dismissal process is no different from the usual:

• The employee writes a statement asking to be dismissed at his own request.
• The application is registered as internal correspondence.
• The director signs the document and sends it to the personnel service or the person responsible for personnel records management.
• The personnel officer issues a work book to the dismissed person with a note on termination of the employment contract. Compensation for unused vacation is paid on the day of dismissal.

Every employee who goes on maternity leave is retained a job (Article 256 of the Labor Code of the Russian Federation).

After the dismissal of such an employee, the employer usually does not look for a new applicant, but employs an employee who temporarily performed the duties of a maternity leave (if he is completely satisfied with the employer).

Dismissal procedure

The process of dismissal during maternity leave is practically no different from the standard one:

• Depending on what caused the calculation, the employer issues a personnel order (based on a personal statement or other document, if the initiative came from management).
• After the expiration of the work period, on the last day, the accounting department, upon dismissal on maternity leave, as well as in the usual case, accrues compensation for unclaimed days of annual leave. In such cases, there is usually no salary.
• The HR department prepares a work book.
• By the time of calculation, the accounting department must have in hand: a certificate of income for the calculation of social benefits (for 2 full years), 2-NDFL and an explanation of the accrued and paid amounts (Article 136 of the Labor Code).
• On the last day, if the woman shows up for work, all agreed amounts are paid and documents are handed over. If the maternity leaver is absent, no later than the next day you must send her a notice that she can receive what she is due on any day.

Sometimes upon dismissal, the question of compensation for unused vacation arises. To the chagrin of many mothers, this is simply impossible, since there is nothing to reimburse. During maternity leave, the employee retains her job, not her salary. The payments she receives through her employer are nothing more than social benefits. His young mother will continue to receive it, only through other organs.

Another question is if the employee wanted to resign during pregnancy and childbirth, before the certificate of incapacity for work expired. For example, in order to go to another workplace. If you start work, benefits for unused days of maternity leave are supposed to be returned to the Social Insurance Fund budget for disability.

Statement

There is nothing special about a resignation letter on maternity leave. If a quick calculation is not needed, then a standard paper is drawn up without indicating the reasons, Art. 80 TC, first part.

If you need to quit very urgently, then you will need to find a good reason to refer to the third part of Article 80 of the Labor Code. Moreover, it is necessary to describe the circumstances in the document itself, and not just tell the employer about it in words.

How to calculate payments

Since the pregnant woman and her employer understand that maternity leave is a long process, even before it begins, they try to make all payments and give the opportunity to take off all the accumulated days of paid leave. That is why there is practically no compensation when leaving on maternity leave. But, if the employer still has some debts, then he will be obliged to compensate for the vacation in financial terms.

When calculating, you should be guided by Art. 139 of the Labor Code and Regulation No. 922 on average wages. The 12 months of work preceding dismissal will be taken into account, and days of illness, pregnancy and childbirth will be excluded from this period. If at this time there were no working days and accrued wages, then the compensation will be calculated based on the salary.

Deadlines

In such a seemingly simple matter as dismissal while on maternity leave, the timing of making a decision and starting active actions depends on the circumstances:

End of a fixed-term contract for an employee on parental leave

An employee working under a fixed-term contract can also go on maternity leave. However, the employer does not have the right to terminate a fixed-term contract during parental leave.

You cannot say goodbye to an employee on vacation (any), even if a fixed-term contract or an employment contract was concluded with him during the absence of another employee. The contract is extended until the date of release from vacation (paragraph 2 of article 261 of the Labor Code of the Russian Federation).

If an employee goes on maternity leave from the rate of any absent employee (vacation, long business trip, maternity leave), then the employer must transfer her to another position that is vacant at that time and corresponds to her qualifications. When the contract expires and there are no suitable vacancies, the woman may be dismissed.

Dismissal of an employee on parental leave during liquidation of an enterprise

Liquidation of an organization is a long process. The employer must terminate the employment contracts of all employees. The procedure for dismissing employees on maternity leave can be divided into several stages:

• Notifying the employee 2 months before the date of dismissal against signature. If it is not possible to meet in person, a registered letter with a receipt stamp is sent to the employee’s address.
• At the end of the two-month period, a dismissal order is created and a work book is filled out.
• They pay compensation for unused vacation, severance pay (for one month), and average monthly earnings while looking for a new job.

If an employee is entitled to benefits, she will be able to receive them from the social security agency.

Compensation and payments

According to the law, the employer must pay the woman financial benefits. The amount of assistance is at least 40% of the average salary level at the enterprise. The payment is paid until the child reaches one and a half years old.

Further maternity payments are not provided for under current legislation. When workers express a desire to quit their job, the employer must pay the debt related to wages. It is mandatory to compensate days if vacation is not used.

If an employee is dismissed at his own request, he is entitled to the following benefits:

• payment of financial assistance if the child has not reached the age of majority (this rule is provided if the employee intends to get a new job in the future);
• the employment center pays financial assistance to people who have lost their main job (if a pregnant woman cannot find a job after returning from maternity leave);
• Social security authorities also provide financial support (this rule applies when laid-off workers do not resume work).

Many people discourage women from resigning on their own initiative without receiving benefits and keeping their jobs. If an employer uses illegal methods and methods of psychological pressure, it is necessary to seek help from law enforcement agencies. Dismissal on maternity leave at one's own request must be carried out without violating the basic requirements.

Responsibility of the employer when dismissing an employee on parental leave

An employee dismissed from parental leave at the initiative of the employer, except for the cases described in clauses 1, 5-8, 10, 11 of Part 1 of Art.
81 of the Labor Code of the Russian Federation, has every reason to appeal to the judicial authorities. If the court satisfies the employee’s demands, the employer is obliged to:

• reinstate him in the same position;
• pay the employee compensation for days of forced downtime;
• pay for material damage.

In addition, the court may hold the employer administratively liable under paragraph 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation and impose fines:

• from 2 to 5 thousand rubles for an official;
• from 50 to 80 thousand rubles for an organization.

Information about any violations is transmitted to the labor inspectorate, so there is a high probability of unscheduled inspections of the enterprise. At the same time, inspectors will check not only data on maternity leavers.