Termination of employment relations with the sole breadwinner in the family: is it possible to dismiss or lay off an employee?

Life is unpredictable, so even a person who is the sole breadwinner in a family with a child may face the threat of layoffs or dismissal. Therefore, many are interested in the grounds on which it is possible to terminate an employment contract with such a person.

After all, a citizen who has a minor offspring needs to support his own family and provide it with everything necessary. When is it possible to fire the sole breadwinner in a family with a child?

The only breadwinner. Who is he?

Employees who single-handedly provide for their family members have an advantage over other employees when they are dismissed due to layoffs, as well as on some other grounds provided for by the Labor Code of the Russian Federation. Article 261 of the Labor Code of the Russian Federation clearly defines who can be classified as these persons.

These include employees who are not officially married and have small children or disabled children, as well as employees whose legal spouse is not officially employed, due to which they are forced to provide for such children alone.

In certain cases, this category of workers may include not only parents, but also grandparents, older brothers, sisters, and other relatives who are forced to provide for children of a certain category without outside help. They can also be legal representatives, for example, guardians.

Restrictions on employees by the employer

The sole breadwinner of the family has certain characteristics related to the performance of his official duties.

In accordance with Art. 264 of the Labor Code of the Russian Federation, the sole breadwinner cannot be involved in such work as:

• night work,
• working beyond normal limits,
• work on official holidays and weekends,
• work that involves going on business trips and leaving the breadwinner’s permanent place of residence.

The illegal dismissal of the sole breadwinner can easily be canceled in court, and he will be paid for all missed days from the date of dismissal until reinstatement. At the employee's claim, the organization may be forced to compensate for moral damage caused. That is why an employer should be extremely careful when dismissing a sole breadwinner in order to comply with all legal requirements. Employees themselves must know and be able to defend their rights in order to defend them when necessary.

Does the husband have privileges if the wife is on maternity leave?

In itself, the presence of a legal spouse on maternity leave does not in any way affect the dismissal of an employee if circumstances arise as provided for by the Labor Code of the Russian Federation. While on such leave, a woman maintains an employment relationship with her employer. And the Labor Code of the Russian Federation determines that in order for an employee to have privileges, his spouse must be unemployed.

Natalia

Labor expert

At the same time, the spouse herself has the right to count on keeping her job, since according to the law, the employer does not have the right to deprive pregnant women of work, as well as employees with small children under 3 years of age.

What to do if your employer violates your rights

If there is a fact of illegal dismissal, the employee whose interests have been violated has every reason, within the first month from the date of making the corresponding entry in the work book, to file a complaint with the following authorities:

• trade union;
• labor inspectorate;
• prosecution authorities;
• judicial authority.

When a complaint is received from a citizen, these departments are obliged to react and, at a minimum, conduct an inspection.

Before going to court, it is better if you have the conclusion of such an audit in hand, which will clearly indicate the identified violations on the part of the employer.

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Is it legal to dismiss an employee if his wife is on maternity leave and has two children?

When the wife is on maternity leave, all the financial burdens of supporting the family fall on the husband. It is especially difficult for those who already have children. And it seems obvious that such fathers of the family deserve special privileges at the place of their employment. However, the legislator thinks differently. And it does not provide any guarantees for a father who has two children and a spouse on maternity leave.

Only the woman on maternity leave can count on such guarantees; she can be fired only in the most extreme cases, for example, upon termination (liquidation) of the employer.

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Does an employer have the right to reduce wages?

Some questions and answers

Question 1. Besides the fact that it is almost impossible to dismiss the sole breadwinner on the initiative of the administration, are he guaranteed any other benefits?

Answer. Such benefits are provided. They relate to the provision of additional leaves, breaks during the working day, and a reduction in the number of working hours. Their detailed list can be found in Art. TK 256-264.

Question 2. An employee was fired, despite the fact that his wife is on maternity leave. Is this legal?

Answer. It is necessary to decide whether the husband is the sole breadwinner. If so, the dismissal should be challenged. But he is the sole breadwinner when his wife did not work before maternity leave. If she was employed and during the period of leave under the BiR receives benefits from the employer, then the spouse does not fall under the status of the sole breadwinner. This means that he cannot take advantage of the privileges regarding immunity from dismissal.

Question to the expert

Where should a dismissed employee with “sole breadwinner” status go? The contract was terminated at the initiative of the employer without explanation.

Answer. First of all, the employee needs to contact the trade union. If this organization does not exist, you must go to the labor inspectorate and write a complaint. Most likely, the results of its audit will be able to force the employer to return the employee to work. When this does not happen, you will need to contact the prosecutor's office and the court. The last authority has the right not only to cancel the employer’s decision, but also to oblige him to pay lost wages and the amount of moral damage.

Can they fire me if my wife doesn't work?

An employee cannot be fired if, although he is in a registered marriage, his wife does not officially work anywhere, and the family has three small children, one of whom is:

• Disabled person under 18 years of age;
• Minors under 3 years old.

In such circumstances, all facts giving the employee guarantees must be confirmed by the necessary documents, including:

1. A certificate from the employment center stating that the employee’s spouse is unemployed;
2. Children's birth certificate;
3. A certificate confirming the assignment of a child with a disability to a specific group.

How is the procedure done?

The most reliable way to part on good terms with an employee raising a minor child is to wait for his resignation letter. But when the desires of an employee and his employer do not coincide, then it is necessary to strictly adhere to a strict sequence of actions:

1. Prepare documents on the upcoming liquidation of the enterprise and reduction in headcount and staff.
2. Coordinate candidates with the primary trade union organization, Art. 82 TK.
3. Warn the employee in writing about the upcoming dismissal at least two months before the planned date, Art. 180 TK.
4. Make efforts to employ displaced specialists (if the reduction is not related to the complete liquidation of the company) - offer in writing all suitable vacancies.
5. Issue an order to terminate the employment contract and, on the day of dismissal, familiarize the employee with its contents against his signature.
6. Give the person a completed work report, pay the settlement - no later than the day following the date of signing the order, Art. 140 TK.
7. Prepare the employee’s personal file for archiving and “eternal” storage (75 years from the date of termination of the employment relationship).

How to write a statement of your own free will?

If an employee raising a child under 14 years of age decides to resign himself, then this can be done in accordance with Art. 80 TK . A handwritten application is submitted to the employer’s office two weeks before the desired date of termination of cooperation. In order for the document to be accepted and processed by the employer, a number of mandatory requirements must be met:

1. In the “header” - in the upper right corner of the A4 sheet, you need to indicate which company the paper is addressed to, the full name and position of its manager, as well as the employee’s data (position, full name and contact phone number, postal address, if it differs from the employer’s data).
2. The document should be titled "Application".
3. If the employee does not plan to quit without working, then in the application it is enough to simply write “I ask you to dismiss with .... in accordance with Art. 80 Labor Code of the Russian Federation."
4. In order to shorten the notice period or convince the employer to abandon it completely, the employee will have to indicate the reason for leaving in the application and attach copies of supporting documents to it.
5. Date and personal signature of the employee.

How to draw up a notice of upcoming deduction at the initiative of the employer?

There are two fundamentally different options for dismissing employees with children on the initiative of the enterprise administration : by layoff and in the form of disciplinary action.

In the event of a layoff, if the employer is confident that in terms of qualifications the employee is inferior in comparison with other specialists, it is necessary to draw up and hand over to him a personal notice of termination of cooperation two months before the dismissal:

1. The notification is issued on company letterhead or indicating all the details of the enterprise.
2. The document must be registered in the outgoing correspondence journal (date and originating number).
3. Title: “Notice of dismissal by way of staff (number) reduction.”
4. In the “body” of the document, you must indicate the position and full name of the employee being laid off, the basis for the reduction, list the employee’s rights and legislative guarantees in the form of early dismissal and the amount of severance pay, as well as compensation payments.
5. The same document can be combined with an offer of vacancies available to the company.
6. Insert the date of compilation and signature of the manager.
7. After reviewing the document, the employee’s signature and the date of delivery must appear on the notification.

Important! If a person avoids receiving a notification or flatly refuses to sign for its receipt, a unilateral act can be used.

For this purpose, at least two disinterested witnesses are invited, and the notice is read again in their presence. Signatures of eyewitnesses are sufficient for the obligation to the employee to be considered fulfilled.

Features of drawing up an order and filling out personnel documents

You can draw up a dismissal order in advance , or you can wait until the last day. To do this, it is better to use the T-8 or T-8a form.

In the “Grounds” column, all documents related to the dismissal must be indicated:

• notification;
• refusal of vacancies;
• act of refusal to sign, if any.

Termination of the employment contract is carried out on the basis of clause 1 or 2 of Art. 81 TK.

But it’s better not to rush into filling out the work book, personal card and registration logs. If an employee decides to exercise the right of early dismissal, the date of the order and entry into the employment record will differ from the original one. The verbatim wording from the dismissal order is transferred to the “work information” column.

Below is a sample of a dismissal entry in a work book:

The main thing is that all records are ready by the employee’s last day of work , Art. 84.1 TK. It must also be remembered that on the day of settlement the person must sign:

1. In the journal of the movement of work books that it was handed out to the employee.
2. The personal card states that he is familiar with the data entered into it.

Calculation terms and due payments

All payments, issuance of originals and copies of personnel documents must be made on the day of dismissal or no later than the next day if the person was absent from the workplace on the last day, Art. 84.1 TK.

Regardless of the reason for termination of the contract, the former employee must receive:

• salary;
• vacation compensation;
• all debts;
• severance pay according to Art. 178 Labor Code or collective agreement.

Dismissal of a single parent with a disabled child or a child under 14 years of age

It is impossible to fire a single parent who is supporting a child under 14 years of age or a disabled person under 18 years of age. Such dismissal can be challenged in court, with the employee reinstated at work and other ensuing consequences.

The status of a single parent must be documented.

Such documents include:

• A certificate from the registry office stating that the citizen is not married;
• Certificate of the child, in which there is a “dash” in the “father” column;
• A court decision to deprive a mother or father of parental rights;
• Death certificate of the child's mother;
• Other documents confirming that the child is being raised by the employee alone.

If the father has many children

If a man has lost his wife and has more than three children in his care, then he cannot be fired for the reason that the offspring receive financial support only from the father. It is his monthly income that is the only source of their existence.

To insure oneself against unwanted dismissal due to staff reduction, a citizen must provide all the necessary documents to certify his position.

It should be noted that a person who has more than three children under their care may lose their job if the company is liquidated.

However, the company's management is obliged to ensure that he gets a similar job in another organization with the same working conditions.

Upon termination of an employment contract, a father with many children is paid two months' severance pay, unclaimed time off and wages from the beginning of the calendar month until the day of dismissal.

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In what situations is dismissal legal?

Despite the existence of extenuating circumstances specified in the law, single breadwinners can still be fired if one of the following grounds exists:

• liquidation (termination of activities) of the employer;
• failure to fulfill the duties of an employee if a disciplinary sanction was previously applied to him;
• gross violation by an employee of his obligations (for example, absenteeism);
• loss of management trust;
• committing an immoral offense;
• violation of obligations by the head of the organization;
• submission of false documents when applying for a job;
• the use of violence against the personality of a student or pupil.

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What to do if your employer fires you without warning

Background of the problem

It's no secret that companies are reluctant to hire young women who might soon get married and give birth, or mothers with small children. After all, the law obliges enterprises to provide certain benefits and guarantees to employees who are on maternity leave, have children under 14 years of age, or have disabilities.

Hiring such an employee has certain consequences:

• Possible frequent absence of an employee from the workplace due to illness of children. On the part of the employer, there is a need to issue sick leave and make appropriate payments.
• Difficulties that arise with involving mothers of children in overtime work and business trips. They are unacceptable without her consent.
• Providing leave without pay for 14 days at a time convenient for the employee.
• In case of staff reduction, management is obliged to provide the employee with another position. The possibility of dismissal is provided only if she does not want to take the vacant position.

Faced with problems in finding a job, a young mother often finds herself tied to the home, and the family can only count on her husband’s earnings.

It happens that a woman raises children without a spouse, thus being the only breadwinner of the family. Therefore, this category of workers is always interested in their rights and guarantees against unlawful dismissal.

Cases in which you may be fired

No law can completely protect a person from losing his job. Yes, of course, if a man performs his duties conscientiously, it is almost impossible to fire him. But when the father constantly violates discipline and is negligent in his duties, the employer has every right to fire him for inadequacy for the position. So, fathers who are the sole breadwinners can be fired in the following cases:

1. If the company is liquidated. Moreover, protection of the rights of an employee is not provided either in the case when liquidation occurs due to the bankruptcy of the company, or when such a decision is made by the founders of the organization. Complete liquidation stipulates that all employees without exception are subject to dismissal. Not only single fathers and fathers with many children, but even pregnant women are subject to the reduction procedure. However, all employees are entitled to benefits and severance pay. This is necessary so that they have financial security while looking for a new job.
2. If the company is liquidated through reorganization and moves to another location. However, in this case, the employer is obliged to offer the man a position in a new location in a new organization. And only if he refuses the position can dismissal be carried out.
3. If there are serious violations of labor discipline. Moreover, in this case, a man can be fired even if he has young children and disabled children to support. Such people are not fired due to a one-time minor offense, but systematic violations can lead to termination of the contract. We are talking about serious violations that contradict the employee’s job description. This includes comments and reprimands. A gross violation of labor discipline gives the employer the right to fire a man, regardless of his marital status and the number of children (absenteeism, being intoxicated at the workplace, disclosing classified information, violating safety regulations, etc.).
4. If it turns out that the man provided false information during the hiring process. For example, the employer learned that the educational document was fake. This gives him the right to fire an employee, even if there are children or disabled people in the family.

There are special grounds for dismissing men in certain industries. For example, if a man is a teacher, then he can be deprived of his job for immoral behavior and corresponding actions, violence towards children.

Loss of trust from senior management may also be grounds for dismissal of single fathers.

In general, a tendency can be identified that the state is ready and willing to help those only breadwinners who do their work conscientiously. Avoidance of official duties will in any case lead to dismissal. If management makes such a decision.

But in the event of a layoff, a single man receives a priority right to retain his position if he has more than 2 children or is the only breadwinner in the family. However, privileges are granted only if candidates for reduction have an equal level of productivity and qualifications.