Usually, when a permanent employee goes on maternity leave, they look for a replacement to take his place. The employee is immediately warned that this is a maternity position, and when the previous employee leaves, he will have to resign or move to another position, if possible. But life is not a predictable thing, and it happens that a new person also needs to go on maternity leave from his place of maternity leave . Both employees and employers are interested in how to deal with such a situation. We will try to clarify this difficult issue.
How is an employment contract drawn up when the main employee is on maternity leave?
In the process of registering an applicant, it is necessary to correctly formulate the provisions on which the contract is concluded, and set a day for termination of the employment relationship. To help personnel workers - Art. 59 Labor Code of the Russian Federation.
A woman who has gone on maternity leave usually goes back to work after her child is three years old. When applying for a temporary employee, be sure to take this nuance into account. And it is necessary to fix in the contract a provision that he leaves his place of work if the maternity leave takes place. It is important to determine the last day of work of a temporary worker. A letter issued by Rostrud N443 dated 2007 provides an explanation on this matter.
In the letter, Rostrud indicates that the last day of an employee on maternity leave is the last day when he actually works. If he does not work for any reason (for example, sick leave), then the last day is the date on which his place of employment was retained.
When a temporary employee leaves, he is given a work book against signature. With it, the employer makes a full calculation of the money earned, taking into account the time worked and vacations not taken.
Typically, women on maternity leave an application to the employer with the date of leaving maternity leave. Therefore he knows about it in advance. There is enough time to terminate a fixed-term employment contract.
Employment contract
If management decides to hire a new employee to replace a temporarily absent maternity worker, then in this case an employment contract must also be concluded. But first, a temporary worker must fill out a job application.
Although, in accordance with the law, the application is not considered a mandatory document, it may be asked to be written at the employer’s discretion. In the future, it can help not only the employer, but also the employee if it comes to litigation. The application should clearly state what position the candidate wishes to obtain and under what conditions. This Labor Code does not approve the need to write an employment application, since the registration of a new employee occurs by signing an employment contract with him.
An application for employment in the place of a maternity maid is written by hand by the candidate applying to replace a temporarily absent maternity maid.
The application is not much different from a regular application for employment , it indicates the same data, and expresses the applicant’s request to accept him in the place of a temporarily absent so-and-so (we indicate the details of the maternity leave) for a position (we indicate the position) indicating the start date of work. The application is signed by the candidate and registered in the journal of incoming applications.
According to Articles 57 and 58 of the Labor Code of the Russian Federation, an employment agreement must have two mandatory clauses - the term and grounds for concluding such an employment contract. In accordance with Article 58 of the Labor Code of the Russian Federation, the maximum duration of the contract is established - up to five years and no more. In this regard, it is very difficult to determine the end date of such an agreement, since a maternity leave can either extend her maternity leave by taking additional leave to care for the child. And also, a young mother can, if she wishes, go out to work earlier, and this is legal and confirmed by Article 256 of the Labor Code of the Russian Federation. Therefore, it is recommended, when concluding an employment contract for temporary cooperation, to indicate not a specific end date, but the date of the event, i.e. exit of a temporarily absent employee from maternity leave (Article 79.3 of the Labor Code of the Russian Federation)
As for the basis for concluding a TD, Art. 59 of the Labor Code of the Russian Federation provides a list of the grounds that are used to draw up such fixed-term contracts. In this case, the basis will be the temporary performance of the duties of an absent employee, who retains her place of work (Article 59 of the Labor Code of the Russian Federation)
After the application for employment in place of a maternity leaver has been correctly written and an employment contract has been concluded, the management of the enterprise issues an order to hire an employee to replace the temporarily absent employee. The order is issued according to form No. T-1 approved by the State Statistics Committee. Moreover, if the fixed-term contract does not indicate a specific end date, but only indicates an event, for example, the absence of an absent employee from maternity leave, then the event should be indicated in the “by” column of the order. The order should also indicate that the temporary employee is performing the duties of a temporarily absent employee.
Temporary worker and his rights
A person hired temporarily has all the rights and responsibilities similar to a permanent employee. The maximum term of an employment contract (fixed-term) is five years. An employer cannot enter into temporary contracts several times in a row. These actions are illegal and entail liability established by Art. 5.27 Code of Administrative Offenses of the Russian Federation.
When the main employee leaves, the temporary one can:
- Receive a salary based on your qualifications and on the basis of a timesheet that indicates working hours.
- For the payment of bonuses and compensations, which are determined by the company’s internal regulations. For example, these are collective agreements or labor regulations.
- On the last working day, payments are made that are due for the period worked by the employee, bonuses, and compensation to the employee for not using legal leave.
How are temporary workers paid?
All issues related to remuneration are discussed when concluding an employment contract. The position is indicated according to the staffing table and the amount of salary or rate that corresponds to this position. The salary of a temporary worker must be exactly the same as that of the main employee for this position. Moreover, a temporary worker is also subject to all allowances, incentives, benefits and guarantees, like other workers.
The salary of a temporary employee may be higher than that of an absent employee for several reasons:
- During his career in this position, the salary level of all employees increased}
- temporary employee received bonus}
- if an employee has the right to receive bonuses for length of service (Article 129 of the Labor Code of the Russian Federation)}
- if you have knowledge of a foreign language, an additional bonus is also given}
- if the employee works piecework and does a large amount}
An employee temporarily replacing a maternity leaver is also entitled to all social insurance payments, such as compensation for sick leave, or going on maternity leave from a temporary job, which will entail all the required benefit payments.
What about vacations? Here, too, there should be no difficulties or questions. A temporary worker, as we have already said, has the right to all guarantees and benefits. He also has the right to take annual leave after working for 6 months. He is entitled to additional unpaid leave on a general basis (Articles 115 and 122 of the Labor Code of the Russian Federation). According to Art. 114 of the Labor Code of the Russian Federation, vacations are granted every year, but if at the time of his dismissal, the vacation has not been used, then the employee is entitled to compensation (Article 127 of the Labor Code of the Russian Federation).
The contract is terminated
According to Art. 79 of the Labor Code of the Russian Federation, the employer warns the employee about the termination of the working relationship. This must be done no later than 3 days before the maternity leave leave.
What to do if an employee hired for a maternity position also goes on maternity leave? Here it is appropriate to talk about the development of two situations:
- An employee hired is pregnant until her maternity leave. Dismissal can occur with the expiration of the contract, if it is issued on a temporary basis, it reflects that the position held is retained until the day the main employee leaves. Based on Art. 261 of the Labor Code of the Russian Federation, an employee (temporary) refuses another position offered to her by the employer. Or there are simply no jobs for her at the enterprise.
- If the contract was signed temporarily, for a fixed-term period, there is no need to warn about dismissal. Art. speaks about this. 59 Labor Code of the Russian Federation.
The position offered to the employee replacing the maternity leave must correspond to her qualifications. At the same time, her position should be taken into account and the question of whether she can perform labor duties at a new place of work should be analyzed. The place of work must be in the same region where the temporary position was. If a woman was employed under a fixed-term contract, and this circumstance was not related to the fact that she was replacing a person on maternity leave, the employer must extend the agreement with her. And this is done until the end of pregnancy.
The employer has the right to verify the presence of pregnancy. A certificate serves as evidence. It is taken at a medical facility.
Expert opinion on the issue of the timing of termination of a fixed-term employment contract for a temporary specialist
The Ministry of Labor provides clarifications regarding this issue (letter No. 14-2/B-935 dated October 18, 2021). In particular, attention is focused on Art. 29, Part 1 of the Labor Code of the Russian Federation, which defines the following legal norms. During the absence of a permanent employee, his former job is retained, and when a temporary employee is registered, a fixed-term employment contract is concluded.
In accordance with the uniform rules, it is terminated upon expiration of its validity period. In this situation, the provisions of Art. 79 Labor Code of the Russian Federation. In detail, a fixed-term type of contract, if it was concluded during the absence of the main employee, is terminated with the return of this permanent specialist and the start of his work.
To summarize, the Ministry of Labor notes that if such an agreement was drawn up for the period of stay of a permanent specialist on sick leave, then it is terminated on the first day following the closure of the certificate of incapacity for work.
This letter was written by Deputy Director of the Department of Remuneration, Labor Relations and Social Partnership T.V. Malenko.
Example 1. Employment during maternity leave: drawing up an application
Vasilyeva G.P. gets a job at Most LLC. Her new job is temporary because the absent employee is on social maternity leave. When hiring Vasilyeva G.P. writes a statement stating:
- Own initials and residential address (Yaroslavl, 3, apt. 1).
- The temporary nature of the future work (this is evidenced by her request for employment in the place of an employee who went on maternity leave).
- Full name of the employee who went on maternity leave (L. R. Dmitrieva).
- My new position (methodologist).
- The department where you are going to work (economic and legal).
- Start date of work (01/19/2018).
- Test period (month).
The application is dated January 16, 2018 and signed personally by the applicant (G.P. Vasilyeva).
Example of a job application during maternity leave
For your information, the main employee, Dmitrieva L.R., who is on maternity leave, will retain her previous place of work and the position of methodologist. She has the right to return to work until the end of her maternity leave. Upon her return, the employment relationship with specialist Vasilyeva G.P. will be terminated.
Decree and documents
They must give her the documents and complete them correctly. The process is handled by the HR department; the expectant mother’s vacation is divided into three parts:
- gestation, postpartum time;
- care leave for up to one and a half years;
- extending this period until the child reaches three years of age.
All applications for leave must be submitted to the manager in advance. When applying for a BIR, you must include sick leave for 70 or 84 days. It all depends on the day of birth of the child or pregnancy (for example, multiple births).
After delivery, the employer is presented with a certificate from the hospital or a certificate of birth of the baby. These papers serve as the basis for crediting a one-time benefit due to the fact that a woman has a baby.
The woman is required to keep her job. And until the child turns three years old. When the child reaches 1.5 years old, the payment of care benefits stops.
Dismissal during maternity leave
Another point of concern for girls working on maternity leave is whether they can be fired if they themselves go on maternity leave. They can fire you, but there are some nuances here. Your contract has a period when it ends and, by law, you must be fired on that day, since it has expired. However, if this date falls during your maternity leave and you have not yet given birth, then the contract is extended until the time of birth. Dismissal will occur on the day you give birth.
If the term of your contract was extended due to a permanent employee not returning to work, and you are on maternity leave, then you can also go on maternity leave. But keep in mind that you will then be fired, either when your contract ends, or when the previous employee takes up his duties. There is no need to be afraid of being fired while on sick leave for the prenatal period. According to the law, it is impossible to dismiss an employee during illness and on existing sick leave.
If you work on maternity leave, you can be fired only after the expiration of your employment contract
Therefore, you can go on maternity leave from your place of maternity leave and not be afraid that you will be fired on the same day; before giving birth you can have absolutely peace of mind.
Transition from a temporary rate to a permanent one
A transfer from a fixed-term position to a main one is made if the person has demonstrated his ability to work and clearly fulfilled the tasks assigned to him. Often the procedure is carried out when a woman raising a child decides to quit. Then the process is associated with the following nuances:
- the replacement may be led through the termination of the contract and then enter into a new agreement;
- When transferring a person, it is necessary to form an application, draw up an order and make a corresponding entry in the work book.
If a temporary employee continues to carry out activities after termination of relations with the employer, then the transfer is made automatically ( Article 72.72 of the Labor Code of Russia ).
