Russian legislation, which contains labor law norms, does not allow termination, at the initiative of the employer, of labor relations with pregnant women, as well as with employees who, at the time of the decision to dismiss, are on maternity leave or to care for a child under three years of age.
The only exception to this rule is cases of liquidation of the enterprise. We will tell you in this article how to fire an employee on maternity leave.
Legal grounds for dismissal of maternity workers during liquidation
Back in 1917, the government made a decision detailing maternity benefits. There is no clear concept of a decree in the current legislation. But traditionally this concept is associated with two periods of time when an employee is relieved of her duties:
- Childbirth.
- Further care for the baby until he reaches a certain age.
The first type of leave is available directly to the mother. The second type of vacation can be arranged by other relatives if they are involved in raising children.
The law prohibits the dismissal of any employee who is on vacation; the reason does not matter. This is stated in Articles 81 and 261 of the Labor Code of the Russian Federation. The same applies to persons with family responsibilities. But the case of liquidation of a company becomes an exception.
Under such circumstances, the employer will be required to terminate all previously concluded employment agreements.
The procedure for dismissing maternity workers during liquidation
If the company is liquidated, the procedure will look like this:
- Trade union bodies must be notified at least three months before the event occurs. Separate negotiations are carried out to monitor compliance with the interests and rights of each interested party.
- The employment service is notified within the same deadlines. Be sure to send the employee’s personal information, including length of service, position, qualifications, and total salary.
- The maternity leaver herself is introduced to the order, also at least two months before the event.
- If the employee cannot personally familiarize herself with the document, they draw up an act related to absence and loss of ability to work. Notice of dismissal is subject to the same rules.
- Information is also included in the work book.
- On the last day, all necessary calculations are carried out. It is mandatory to issue a certificate of income and all necessary documentation. This simplifies further interaction between citizens and regulatory authorities.
Article 81 of the Labor Code is the main document that regulates the procedure and order.
Maternity leavers have the right to terminate agreements on their own initiative. To do this, you don’t have to wait until the company is liquidated. Then you can request another compensation calculation - wages in the minimum amount, from the moment of dismissal until the final liquidation of the enterprise.
How to fire an employee on maternity leave
An approximate algorithm for dismissing an employee on maternity leave includes the following steps:
- Notification of the trade union body at least 3 months before dismissal and negotiations with it on respecting the rights and interests of trade union members (Clause 2 of Article 12 of the Law “On Trade Unions, Their Rights and Guarantees of Activities” dated January 12, 1996 No. 10-FZ) .
- Sending information to the employment service (Article 25 of the Law “On Employment in the Russian Federation” dated April 19, 1991 No. 1032-1) 2 or 3 months before dismissal, depending on the number of staff of the enterprise (for individual entrepreneurs - 2 weeks).
- Warning employees personally and signed at least 2 months before termination of the employment contract (Part 2 of Article 180 of the Labor Code of the Russian Federation).
- Issuance of an order in accordance with Part 1 of Art. 84.1 of the Labor Code of the Russian Federation, which the employee will have to familiarize herself with under her signature. However, this is not always possible, given that we are talking about maternity leave. In this case, it is necessary to draw up a statement about the inability to sign due to incapacity for work.
- Entering information about dismissal into the work book. The approximate wording will correspond to the basis given in Art. 81 of the Labor Code of the Russian Federation (in accordance with clause 5.3 of the instructions for filling out work books, approved by Resolution of the Ministry of Labor dated October 10, 2003 No. 69): “F. I. O. was dismissed due to the liquidation of the organization under clause 1, part 1, art. 81 Labor Code of the Russian Federation." The work record book can be sent by mail if the employee consents to this.
- Employee calculation. It is carried out on the last day of dismissal, and certificates of income and copies of documents necessary for processing further payment of child care benefits are also issued.
Recommendations for dismissal:
The notice to the employment service must contain complete information about the position of each employee in the organization:
- name of profession;
- general experience;
- qualification;
- amount of wages.
There are no requirements for the form of such a letter (letter of Rostrud “On the form of notification by the employer...” dated September 26, 2016 No. TZ/5624-6-1), however, territorial divisions can approve their own requirements for the preparation of documents. The sample can also be found in Appendix No. 2 to the government decree “On the organization of work to promote employment...” dated 02/05/1993 No. 99.
Failure to provide information may result in administrative liability (Article 19.7 of the Code of Administrative Offenses of the Russian Federation). A similar case was considered, in particular, by the Kamchatka Regional Court (resolution dated September 16, 2013 in case No. 4-A-206).
Labor legislation does not contain requirements for the format and procedure for notifying an employee of the upcoming dismissal, however, it is advisable to focus in advance on the viability of such evidence for the court. To do this, you need to take the following measures:
- Make an inventory of the attachments when sending a letter.
- Track the letter using the identification track on the Russian Post website and find out about the delivery date and delivery. It is worth noting that judicial practice has different approaches to the question of whether an employee is considered notified when the period for storing a letter in the department expires. In a number of situations, the court finds the employee unwarned (ruling of the Omsk Regional Court dated January 24, 2007 in case No. 33-219), in some cases the case is resolved in favor of the employer if he insists that the employee, by not receiving the letter, abused his rights (definitions Moscow City Court dated 04/20/2015 in case No. 4g/3-3660/15 and 03/18/2014 in case No. 33-7844/14).
- Additionally, contact the employee by phone, compiling a telephone message about this, or write an SMS message with a delivery notification - such actions may be taken into account by the court.
Nevertheless, the safest thing to do would still be to go, accompanied by a delegation of several people, to the employee’s residence address and ask him to sign the acquaintance. If an action is refused, witnesses will be able to record it.
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What benefits will a maternity leave person receive?
Pregnant women in the event of company liquidation can count on the following compensation:
- Child care allowance, if warranted.
- Temporary loss of ability to perform labor functions.
- All accruals reflected in the company’s internal regulations.
- Replacement with the cash equivalent of each day of vacation that remains unused.
- Full payment of wages for the period when the citizen worked at the enterprise.
The employer assigns payments if sick leave is sent before dismissal. On the day of dismissal, transfers related to child care upon foundation must cease. Transfers are made for all previous days before the date of dismissal. After the liquidation of the enterprise, representatives of the Social Insurance Fund are subsequently responsible for resolving this issue.
Even if at the time of liquidation the employee was on vacation, her rights are no different from other subordinates going through the same thing.
What payments should be made to employees?
In accordance with Part 1 of Art. 81 of the Labor Code of the Russian Federation, the basis for termination of employment contracts at the initiative of the employer is the liquidation of the organization.
When the participants decide to liquidate the organization and stop this business, a liquidation commission is formed. It is to her that the powers to manage the enterprise are transferred, including the dismissal of employees. According to Part 6 of Art. 22 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”, the enterprise will be liquidated when an entry is made in the Unified State Register of Legal Entities.
Payment of severance pay upon liquidation of an organization is one of the responsibilities of employers. What are the stages of liquidation and at which stage will compensation be issued? What regulations should be followed when making a decision? How to make the necessary calculations? Let's talk about severance pay upon liquidation of an organization in 2021.
After paying off extraordinary expenses (legal costs and payment for the services of a manager), payment of wages begins according to the drawn up schedule for repayment of the resulting debt.
That is, she will need to pay compensation for unused vacation, as well as severance pay.
Features of the preparation of personnel documentation
It is necessary to adhere to the standard procedure associated with the dismissal of workers. A mandatory requirement is to draw up an order containing the following information:
- The reason why employment agreements are terminated.
- Indication of the position.
- The name of the document, a statement of its essence.
- The exact reason for dismissal.
- Business name.
- Document Number.
Closing an enterprise allows you to dismiss women on maternity leave using general grounds.
Instant notification of what is happening is often impossible due to the fact that the woman is not at her workplace. The employer must in any case involve employees in personally familiarizing themselves with the papers.
When the day of dismissal approaches, the employee must receive the following papers:
- A copy of the sick leave certificate.
- A copy of the application for benefits for caring for a child up to one and a half years old.
- Order of dismissal.
- Help 2-NDFL.
- Help regarding wages.
Women's rights
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The current legislation contains a system of norms that ensure the protection of the rights and interests of women. All participants in labor relations, including the employer, must be guided by established standards.
Ignoring the norms is a violation of the Labor Code, which entails liability on the part of the violator.
Thus, among the norms protecting the interests of pregnant women, it is necessary to highlight the following:
- Article 41 of the Labor Code of the Russian Federation regulates the rights of women and children in relation to labor relations.
- Article 253 of the Labor Code of the Russian Federation includes norms that limit the work activity of women during pregnancy and caring for a child up to 1.5 years old.
- Articles 255 -258 of the Labor Code of the Russian Federation determine the procedure for women on maternity leave.
- Articles 259 - 261 of the Labor Code of the Russian Federation contain guarantees for this category of employees regarding exemption from working overtime, on weekends and holidays.
Making an entry in the work book
It is necessary to go through a number of important procedures in order for the issue to be resolved in compliance with current legislation:
- Issuance of an order, affixing a personal signature. Be sure to write the date and real reason for dismissal. The same applies to compensation payments to an employee. This information is required.
- Filling out a personal file with information related to dismissal. An entry in the employee’s work book is also made under appropriate conditions. The main thing is to correctly record the reason for dismissal and indicate the order number. Then the registration will not violate the requirements of current legislation.
About other cases of dismissal of maternity workers
Upon dismissal, women on maternity leave, in addition to the usual payments, are entitled to additional compensation:
- Child benefit is one-time.
- Child benefit paid every month.
If all documents are submitted to the employer, the social security authorities transfer all the necessary funds for maintenance.
If by the day of dismissal there is no exact calculation of monthly allowance, the amount of payments reaches 40% of average earnings. The reporting period for this issue is 12 months preceding the time of application for help.
Once again, benefits will not be calculated if at the time of dismissal the woman is already on maternity leave. They only make payments depending on previous agreements with the employer.
Doubts often arise about whether severance pay is due to those who are on leave to care for children under 3 years of age. Don't trust HR staff. They often say that payments are not due due to the fact that the previous 12 months were not paid in any way.
The period of maternity leave is simply excluded from the calculation. The calculation takes into account the period before the baby appeared and required additional care.
Features for sick leave
The average salary for the entire vacation period is the standard amount of compensation when sick leave is provided to the employer.
The obligation to pay benefits is removed if sick leave is filed in the month when the dismissal has already taken place.
Women retain their right to benefits in the following situations:
- The contract was terminated due to the need to care for a sick family member with a first group disability.
- The disease made further work and living in these parts impossible.
- Translation by husband.
What else should you know when dismissing a maternity leaver?
In further payments after dismissal, a role is also played by whether the woman was able to officially register with one of the employment centers after receiving status. If there is a reason to pay benefits, and no more than a year has passed between the dismissal and the current moment, you can safely contact the employer.
The Social Security Service is responsible for benefits if maternity leave has already been received at the time of dismissal. But payments in this case will be minimal.
To extend payments, a woman will need the following documents:
- A copy of the sick leave certificate.
- Order of dismissal.
- Application for leave.
- Certificate of income for the last 2 months.
- Certificate of accrued benefits.
Organization liquidation process
As a result of liquidation, the company finally ceases its activities and is excluded from the Unified State Register of Legal Entities. There are two types of liquidation:
- Voluntary - when the owner himself decides to stop operating. In this case, employees can transfer to another organization while an official decision has not yet been made.
- Forced - the process is initiated by a higher company or founders. Dismissed employees must subsequently be employed by the employment service.
The entire liquidation process from the moment the decision is made to the final closure of the company can take 4-8 months. This time is needed to complete all mandatory procedures. There are certain stages of liquidation of a company:
- A decision is initiated to begin this procedure, and a special commission is created.
- A notification is sent to the district tax authority. This must be done within three days of the start of the process.
- Information about the termination of activities is published in specialized printed publications: “Bulletin of State Registration” or “Bulletin of the Supreme Arbitration Court of the Russian Federation”.
- Written notifications are sent to employment services, creditors of the organization and employees of the company.
- An audit is being carried out by the field tax service. It lasts approximately three months.
- Debts are collected from the company's debtors.
- A liquidation balance sheet is drawn up.
- An inventory of property is being carried out.
- Debts to creditors are reimbursed.
Decision to terminate the activity of the entity
Liquidation of an enterprise is a fairly time-consuming process. The procedure consists of several stages. Article 81 of the Labor Code of the Russian Federation regulates interaction with employees if the reason is the bankruptcy of a legal entity.
Under such circumstances, women on maternity leave have continuous service until the legal entity is deleted from the register.
Payments to employees consist of wages and severance pay for the previous 2 months. The question of self-dismissal most often arises under two circumstances:
- The procedure took a long time.
- The employer is insolvent.
You can agree to this proposal, then all calculations are carried out in an expedited manner.
If liquidation occurs in the standard manner, even dismissal in case of absence from work is provided. This also applies to those who are on vacation for health reasons, due to the need to care for children and relatives.
But the employer is still obliged to tell about the dismissal. The notification must be received within the period established by law.
Arbitrage practice
Dismissal of maternity workers during liquidation is the only situation when employees’ claims are practically not satisfied when going to court. Employers have the right to act on personal initiative.
Employers retain the right to dismiss, even if they were not warned about the pregnancy of their employees. At the same time, any actions are carried out as if they do not violate current laws.
A claim for violation of legal rights will be satisfied only if the pregnant woman did not receive notice of the upcoming event within the time limits specified by law. But even in such situations, more money is spent than real results are achieved.
It is better when there is agreement to sign an agreement on terms that satisfy both parties. Example - compensation can be reduced by half, but at the same time get rid of the need to stand in a general queue.
As a general rule, a company may show signs of bankruptcy. This process can take 18 months or more, even if the employer meets all the requirements. The actions of temporary managers and other features of the procedure often lead to the fact that the company is unable to transfer the minimum amounts.
Because of this, there is also a high probability that the woman will not receive the money due. Sometimes it is better to immediately reduce the amount, but get it as quickly as possible. So as not to face negative consequences later.
Is the closure of a company a legal basis for laying off an employee on maternity leave?
In accordance with Art. 261 of the Labor Code - liquidation of an enterprise or termination of activities by an individual entrepreneur is the only legal basis for terminating an employment relationship with a pregnant woman.
Read more about whether an employee on maternity leave can be laid off here, and from this article you will learn about when it is legal to lay off a woman with children under 3 years of age and when it is not, as well as how the dismissal procedure goes.
