All about the maternity rate: 9 questions you wanted to know the answers to

As in the case of an open-ended employment agreement, a pregnant woman has the right to take paid maternity leave. Upon application, she has the right to go on maternity leave according to the established deadlines (28, 30 weeks). The employer will not be able to refuse or fire her if there is such an initiative.

For your information, if a pregnant woman nevertheless quits on her own initiative, she can change her mind and withdraw her application in the general manner. The employer will not be able to prevent her from continuing to work.

Mistaken actions when dismissing a pregnant woman

When concluding a fixed-term contract with her, the text of the document indicated the expiration date of its validity.

When the main employee returned to work, the pregnant woman began to be fired.

She began to challenge the dismissal, citing the fact that the period of validity indicated by the fixed-term contract had not expired

Conditions for hiring an employee

The procedure for replacing a maternity place is not particularly complicated. But in order to respect both the interests of the company and the legal rights of workers, it is necessary to take into account a number of legislative points that must be documented.

New treaty

In particular, if a new employee is invited to the company specifically to fill a maternity position, two points need to be taken into account:

• Maternity leave consists of two periods - labor leave and parental leave. That is why at the initial stage the contract is concluded for only 140 days, but then it is extended in the manner prescribed by law.
• A woman on maternity leave, in accordance with the norms of Article 256 of the Labor Code of the Russian Federation, can interrupt the period intended for caring for a newborn at any time, taking up her duties even in part-time mode. The order and contract must contain not only a specific date for termination of cooperation with the newly hired employee, but the basis for it, that is, before the departure of the main worker.

Transfer of another employee

But transfer to another position, even on a temporary basis, implies the publication not of a new cooperation agreement, but of an additional agreement. It, in turn, must be accompanied by a number of fulfillment of the conditions prescribed in the Labor Code of the Russian Federation.

That is, it is necessary to at least make sure that the new duties are not contraindicated for the deputy for medical reasons, and also take into account the fact that this procedure is carried out with the written consent of the worker.

By the way, you should also take into account the requirements for the position itself, which are specified in the same ETKS and job description.

That is, to occupy a certain position, you must have the proper qualifications, as well as meet a number of additional requirements for the same skills, or knowledge in a certain area.

Imprisonment period

Maternity leave is only called such, although in fact we are talking about two different periods, enshrined in separate articles of the Labor Code of the Russian Federation and having different grounds for registration, not to mention the timing.

In particular:

• The first part of the decree is directly related only to the final period of bearing the baby and bringing it into the world, which is confirmed by the same sick leave issued for a period of 30 weeks.
• Based on the specified document, the woman is granted leave for 140 days within the framework of Article 255 of the Labor Code of the Russian Federation, and in case of multiple pregnancy or complicated childbirth - up to 194 days, which implies the conclusion of a fixed-term contract or registration of a temporary transfer only for the period specified in the sick leave , naturally indicating the cut-off date.

But the second part of the decree already has options:

• By virtue of Article 256 of the Labor Code of the Russian Federation, a woman can use this period partially, that is, only two or three months or all three years. In addition, at some point, based on personal considerations, she may interrupt her vacation, with the intention of starting her duties literally six months after giving birth.
• Moreover, if the fixed-term contract or the order contains only a specific date for the end of the fixed-term contract, the employer will not be able to simply fire the replacement. You will have to fulfill the conditions specified in the contract regarding the duration of the agreement. That is why it is recommended to indicate the basis, that is, before the main employee goes to work.

You will find a sample of filling out the staffing list on our website. Read about tax deduction reimbursement for treatment here.

Expert explanation

Rostrud on the information portal “Online inspection. RF”, in response to a user’s request regarding this issue, reports the following.

If a fixed-term agreement is extended at the request of a woman until the end of pregnancy, she should be presented with a corresponding certificate from doctors every 3 months. The employer can fire her only under the following circumstances:

1. When the child has already been born, after maternity leave (if it was provided at the request of the employee).
2. At the end of pregnancy, the employer has the right to dismiss the employee due to the expiration of the agreement within a week. The countdown starts from the day (date) when he became aware of this (or he should have known about it).

Rostrud also draws attention to the fact that if, contrary to the norms of the Labor Code of the Russian Federation, an employer fires a pregnant woman, the woman can immediately turn to the trade union or labor inspectorate for help. Also, no later than three months later, the dismissed person has the right to demand restoration of her rights in the labor dispute commission or city (district) court.

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

It is noted that if the dismissed person misses the established period due to an appeal to other authorities (trade union, etc.), then the deadline for going to court will be considered missed.

Example 1. Dismissal of a pregnant woman upon expiration of a fixed-term agreement

Citizen Druzhina V.N.

works at Vasilek LLC under a fixed-term agreement, which expires on March 20, 2021. Since the woman is in an “interesting position,” she has the right to write a statement addressed to the employer to extend the agreement.

If Druzhina V.N. takes such an initiative and confirms her pregnancy with a medical certificate, the employer will not be able to fire her when the agreement ends.

Druzhina V.N. did not write an application for extension. The employer fired her on March 20, 2018 due to the expiration of the fixed-term agreement. His actions are lawful and cannot be disputed.

Example 2. Dismissal of a pregnant woman when the main employee returns to work

At Vasilek LLC, under a temporary agreement, a pregnant woman was hired to replace a temporarily absent permanent employee. Soon the main employee returned to work.

Taking into account the current situation, an employer can fire a pregnant woman only in two situations. If there are no vacant positions at all. Or, if there are vacancies, they were offered to the pregnant woman, but the offer was rejected.

Since there was one vacancy at Vasilek LLC at that time, the employer offered it to the pregnant woman. The position turned out to be less paid than the previous one, so the woman refused it.

Considering that there were no other vacancies, the employer began formalizing her dismissal in a general manner. The actions of the head of Vasilek LLC are lawful.

Reinstatement at work

Cancellation of a dismissal order

Each significant action within the organization is documented in the appropriate document. The decision to cancel an existing dismissal document is also issued in the form of an order. The law does not provide for a strict form for this document, but it must contain the required information:

• Name;
• details of the document to be cancelled;
• information about the name of the enterprise and its registration data;
• grounds for cancellation;
• date.

The registration is completed by affixing the seal and signature of the manager. Next, the HR employee familiarizes the employee with the order, about which a corresponding note is made with the signature of the familiarized person.

The grounds for canceling an order are:

1. Voluntary withdrawal of resignation by an employee.
2. Manager's decision. For example, when it is revealed that an employee has been unfoundedly accused of violations that served as the basis for termination of the employment contract. The employee's consent is required.
3. A court decision to reinstate an employee at work.

In the first two cases, an order to cancel the decision is sufficient. They will differ only in terms of the grounds for cancellation.

A sample order is available.

If there is a court decision, the employer, in addition to the document discussed above, has the right to issue an order to reinstate the employee in the workplace.

Arbitrage practice

According to Art. 79 of the Labor Code of the Russian Federation, the basis for terminating an agreement with a temporary worker is the actual departure of the absent employee. Absence due to maternity leave may be followed by absence due to childcare. Thus, the departure date of a permanent employee is delayed. The courts take the position that if the employee does not actually go to work, then the agreement with the temporary employee cannot be terminated in the absence of other significant circumstances.

There is an inaccuracy in concluded contracts with the wording “until the expiration of maternity leave”. Since the duration of the work for which a replacement person is hired is not determined solely by the duration of absence due to pregnancy and childbirth. The period is increased at the request of the woman in connection with caring for the child.

This fact does not depend on the company. Therefore, the nature of the contract is defined as concluded during the absence of a permanent performer. Despite the inaccuracies that are made when hiring, the duties of a substitute cannot be diminished. And the job must be reserved for him if the permanent performer does not actually return to work. When considering such cases, judges carefully examine this fact.

An example is one of the proceedings in the city of Belgorod. A woman hired for a temporary job to replace an employee on maternity leave was fired. The reason was the fact that the maternity leave was earlier than scheduled. She decided to take maternity leave later.

The dismissed employee felt that her rights were violated, and that the organization’s administration was obliged to change the terms of the contract with her or conclude a new one. She filed a claim for reinstatement at work. She was refused on the grounds that the plaintiff’s demands were unfounded. The judge concluded that the dismissal was legal and that the organization had no grounds to change the terms of the agreement.

If, at the time of drawing up the document on termination of the agreement with the replacement person in connection with the end of the main employee’s maternity leave, the employer had information about the further absence of the permanent employee due to child care, the dismissal is considered illegal. If a temporary performer is pregnant, this fact is not decisive, provided that she was hired for the replaced position.

The position of the judicial authorities is unanimous regarding the terms of performance of the duties of a substitute, which expire at the time the main employee actually returns from vacation. The release dates specified in the agreement do not matter, and the permanent contractor began his duties later or earlier than the prescribed deadlines. This rule is intended to protect the rights of the key employee.

Preliminary indication of specific start and end dates of employment is not prohibited. But at court hearings, the actual time of departure of the permanent contractor is established, based on which the legality of the dismissal is established.

Thus, there are no grounds for dismissing a temporary person if the main employee has not taken up his official duties. At the same time, if he starts them earlier than planned, the contract with the replacement person is legally terminated.

Important! Before terminating an agreement with a pregnant conscript, the organization is obliged to offer her available vacancies that correspond to her qualifications, including lower-level ones. The replacement employee should be explained her rights to fill another vacant position, as well as subsequent dismissal in the event of refusal. An act is drawn up, where a note is made about these clarifications, the fact of refusal is recorded against the signature of the conscript.

These actions must be taken in order to provide all the evidence in the event of litigation that the employer took into account the employee’s rights, which will indicate his reliability.

Answers to frequently asked questions

Question No. 1: A pregnant woman did not apply for an extension of a fixed-term agreement. Can she be fired?

Yes, the employer has the right to fire her legally.

Question No. 2: If a woman did not provide a pregnancy certificate at the employer’s request, but wrote an application to extend the contract, can she be fired?

Yes. The employer has the right to refuse to renew her agreement if there is no such certificate, or if there is one, but the woman refuses to provide it at all, or every 3 months.

The state guards the interests and rights of the expectant mother. From the moment the woman informs the employer of her situation, her dismissal will be illegal, regardless of the reason.

But how do a fixed-term employment contract and pregnancy combine? What to do if a woman is hired under the specified conditions, the contract term has come to an end, and the employee has not yet given birth?

Important nuances

What can you expect with a fixed-term contract for less than a month?

In accordance with Article 58 of the Labor Code of the Russian Federation, the minimum duration of the agreement on mutual cooperation is not established. Consequently, a woman can be hired for even two weeks.

At the same time, taking into account that a formal contract is concluded with a temporary employee, the norms of the Labor Code of the Russian Federation apply to her in full. Therefore, it will be possible to fire a woman only after the end of her pregnancy.

In what cases is a contract extension required?

Of course, in most cases, women are hired on a temporary basis to replace an absent employee.

However, in some cases, a fixed-term contract may also be concluded to perform seasonal assignments or work on one of the projects, due to the lack of a specialist with the required qualifications. In this case, the validity period of the contract may be limited not only to a specific date, but also to a task, the completion of which is confirmed by an acceptance certificate or other documents.

That is, a woman, even during pregnancy, can continue to work on a project until she goes on maternity leave, or complete all tasks at an early stage.

Moreover, due to the interesting position of the employee, the company cannot terminate the contract, even if the order is completed. Therefore, the employee is released from work and every three months provides a certificate of her condition, on the basis of which the contract is extended until the end of the pregnancy.

If a woman replaces an absent employee

However, there are some nuances in which a fixed-term employment contract, dismissal and pregnancy are not mutually exclusive concepts. This applies to cases where the expectant mother replaces a temporarily absent employee who can begin to perform his professional duties at any time.

This means that every day of work of the pregnant woman replacing him may be the last. In this case, according to the law, she should be transferred to another vacant position until the end of the pregnancy. Moreover, this job may pay less or require less qualifications.

If there are no vacancies or the employee refuses them, then, in accordance with the law, her dismissal will be legal.

Who will replace an employee during maternity leave?

First, let's determine what options there may be for replacing the main employee. There are three of them:

1. hire a new employee to replace the maternity leaver by concluding a fixed-term employment contract with him;
2. transfer another employee to the position of the main employee, while relieving him of his main duties;
3. arrange for one of the existing employees to work together to perform part of her work.

Considering that the main employee will spend quite a long time on vacation, the first and second options are mainly used.

General provisions

Employment relationships based on conditions of urgency can also be terminated with a woman expecting a child. The main legal basis for this is the desire expressed by the employee herself.

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

The Labor Code does not qualify the termination of a contract due to its expiration as an initiative of the organization. Consequently, a woman carrying a child and working under a fixed-term contract may be dismissed on this basis.

According to the general rule established by law, the period of validity of a fixed-term contract is extended by the employer if, by its end, the employee has provided official confirmation of her pregnancy - a certificate from the antenatal clinic. In such a situation, it will be possible to fire her only after returning from postpartum sick leave.

However, almost every law provides for exceptional cases. A woman can also be fired if she worked in place of a temporarily absent specialist.

Upon his return, the employer must offer the pregnant employee a vacant position. In the absence of such or the woman’s refusal to transfer to another position, the fixed-term employment contract with her is terminated.

If a pregnant employee does not provide the employer with evidence of her current situation, he has the right to say goodbye to her in the general manner due to the end of the contract.

To fire a woman working on a fixed-term basis during pregnancy, it is enough to obtain her consent (Part 2 of Article 261 of the Labor Code of the Russian Federation).

Fixed-term employment contract and maternity leave in 2021

If the term of a contract with a limited period of validity does not expire during the interesting situation of the worker, as well as immediately after the release of the burden, the execution of the decree is no different from the usual procedure.

Leisure care

According to the norms defined by Article 255 of the Labor Code of the Russian Federation, a pregnant employee for a period of 30 weeks issues a sick leave at the place of registration in the antenatal clinic, which is then provided to the enterprise.

Also, to the certificate of incapacity for work, the worker attaches a statement drawn up in any form with a request for maternity leave. Accordingly, based on the submitted documents, a leave order is issued and the woman can calmly prepare for the birth of the baby.

If the mutual cooperation agreement expires before 30 weeks, the woman at her place of work provides a certificate of her interesting position. Moreover, this must be done every three months.

On the basis of this certificate, the validity of the contract is extended until the burden is resolved and the sick leave ends, after which the employment relationship is terminated, again on the basis of an order, but this time on dismissal.

How is it processed?

If the period of validity of the employment contract expires after using labor and labor leave, the woman has the right to apply for parental leave by submitting an application and a birth certificate for the baby.

Based on the submitted documents, an order is issued at the place of work, which actually gives the temporary employee the right to calmly take care of the baby until he is three years old, and without fear of dismissal.

Maternity payments

In accordance with Federal Law No. 81, pregnant women can count on the following types of payments:

• a one-time benefit for early registration before 12 weeks on the basis of Article 9;
• payments provided in connection with pregnancy and the birth of a baby in accordance with Article 6;
• benefits in gratitude for the birth of a child in accordance with Article 11;
• monthly transfers for the baby in accordance with Article 12.

Features of accrual and payment

The first payment to a pregnant woman is a maternity benefit, which is calculated based on the sick leave filed.

Moreover, in accordance with Article 11 of Federal Law No. 255, the calculation of the entire vacation period is carried out in the amount of 100% of average earnings, regardless of the length of the woman’s total work experience. If the total length of service of an employee is less than six months, the minimum wage established in the region of residence of the employee is used as the average wage.

Also, along with the B&R benefit, the woman is also paid a payment for registration up to 12 weeks, based on a certificate provided from the antenatal clinic.

In this case, the employee has the right to the agreed payments in any case, given that the temporary employer is an intermediary who transfers to the worker the funds provided by the state as social benefits.

In accordance with Article 11 of Federal Law No. 81, the employee also has the right to benefits for the birth of a baby. Moreover, this payment can be received either by her personally at her place of work, or by other relatives of the newborn, for example, by the father, at his place of employment or at the social security department, if the woman was fired after giving birth in accordance with Article 79 of the Labor Code of the Russian Federation.

Also, a temporary employee has the right to a monthly allowance, which is intended to meet the needs of the baby.

Moreover, if by the time the agreed payment is calculated the woman is fired, the amount of the benefit will be assigned by the social protection department in the minimum amount.

If the agreement on mutual cooperation is continued, the amount of the benefit will be calculated at 40 percent of the average earnings for the last 12 months.

What documents are needed to apply for maternity leave? Read our article. How to fire a pregnant woman during a probationary period? Find out here.

Can a pregnant woman be given leave in advance? See here.

Benefit amount

In accordance with the norms of Federal Law No. 81, the amount of social benefits provided in connection with pregnancy and the birth of a baby in each case has its own characteristics, given that women belong to different social categories and can give birth to either their first or third child.

According to BiR

When registering for maternity leave, the following payments are transferred in the amount:

• 613.14 rubles – for early registration;
• average wages for 140 or 196 days.

For child care

Accordingly, after the birth of the baby, regardless of whether the employment relationship continues or is terminated due to the end of the contract period, the temporary employee has the right to two types of payments.

These include:

• 16350.33 rubles for the birth of a baby;
• 40% of the average payment or 3065.69 rubles monthly for child care.

If an employee is hired to replace another woman on maternity leave

In accordance with Article 261 of the Labor Code of the Russian Federation, a pregnant employee employed on a temporary basis can be dismissed only if the main employee begins his duties. For example, returning from maternity leave.

At the same time, on the eve of dismissal, the company management is obliged to offer the woman a transfer to other positions, of course, if they are available, but on the condition that the woman can perform future responsibilities without compromising her interesting condition.

Dismissal and termination of the agreement

The law provides for only two cases of termination of relations with a pregnant employee, and even then as an exception, and with strict adherence to the procedure specified in Article 261 of the Labor Code of the Russian Federation.

An agreement on mutual cooperation with a woman during pregnancy can be terminated:

• when the main employee returns to the company;
• upon expiration of the period of contractual relations during pregnancy, followed by prolongation until resolution of the pregnancy.

How to apply correctly?

In accordance with Article 79 of the Labor Code of the Russian Federation, at the end of the contract period, the employee must be notified of the termination of the legal relationship three days before the termination of the employment relationship.

Moreover, if the contract was drawn up due to the absence of the main employee, the woman is not required to notify due to the fact that the contract was initially concluded before a certain date, which the employee was familiar with at the employment stage.

That is, when the main employee leaves the enterprise, only an order is issued to terminate the relationship due to the expiration of the contract period, which the temporary employee becomes familiar with.

If the contract is terminated due to the performance of a certain amount of work, and even after an extension, the employer is obliged to notify and also fire the woman within a week after the birth of the child became known.

At the same time, given that the law does not establish a procedure for informing management about the birth of a baby, notification can be done by providing a certificate from the maternity hospital or a copy of the birth certificate.

On their basis, a notice of termination of the employment relationship will be issued after three days, as well as a dismissal order will be issued.

Entry in the work book

In the event of termination of legal relations upon expiration of the period of validity of the mutual cooperation agreement, regardless of whether the employee is pregnant or not, the following entry is made in the labor book:

“Dismissed due to the expiration of the employment contract on the basis of Article 77 of the Labor Code of the Russian Federation.”

In what cases is maternity benefit available for individual entrepreneurs? Is child support due during maternity leave? Find out here.

Dismissal on maternity leave

If a woman carrying a child worked on maternity leave (replacing an employee who was absent for some time), the employer has the right to fire her under two conditions:

• a permanent specialist returned to work;
• The pregnant woman herself refused to transfer to a vacant position (Part 3 of Article 261 of the Labor Code of the Russian Federation).

In this case, the employer must offer the pregnant woman all available vacancies at the enterprise that correspond to her qualifications and health: with higher and lower wages.

Other grounds for dismissal

The law does not prohibit termination of an employment contract with a pregnant woman by agreement of the parties and her own initiative (clause 1 and clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation).

In the first case, a fixed-term employment contract between the employee and the employer can be terminated at any time before its expiration. To do this, all you need is a written document.

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

The second option is possible only at the request of the pregnant woman, which is expressed in writing by submitting an application addressed to the head of the company (Article 80 of the Labor Code of the Russian Federation).

She can be fired after the usual working period of two weeks or on any day agreed with the employer. If the employee changes her mind and decides to withdraw her resignation, then it will be impossible to terminate the employment relationship with her (Part.

4 tbsp. 80 Labor Code of the Russian Federation).

conclusions

A fixed-term employment relationship cannot be terminated with a pregnant woman, unless, of course, she is hired to replace an absent permanent employee.

The agreement should be extended until the end of pregnancy or maternity leave, if it is issued. The maternity leave must be issued if the woman has provided sick leave and an application requesting leave.

For the entire period of maternity leave, a benefit should be assigned, the calculation of which is made in the standard manner on general terms.

Possible mistakes

If a fixed-term employment contract is drawn up with violations, the pregnant employee will be able not only to extend it, but also to transfer it to an open-ended contract. Such violations are:

• the absence of an expiration date in a fixed-term employment contract;
• the contract for replacing a temporarily absent employee specifies a specific end date. Termination of a contract concluded for such a reason is possible only on the day the replaced specialist starts working;
• notifying the pregnant woman of the upcoming dismissal less than three days before the planned date of termination of the employment relationship;
• failure to provide the dismissed employee with an order to terminate the contract for review;
• the employer made mistakes in the procedure for dismissing an employee;
• repeated extension of a fixed-term employment contract.

Pregnant women are classified as workers under special state protection. Therefore, when terminating an employment relationship with them, it is important to be extremely careful and check the correctness of all documents.

If the employer initially complies with all the norms of labor legislation for concluding a fixed-term contract with a woman, then there will be no difficulties in terminating interaction with her in the event of pregnancy.

The law protects pregnant employees and excludes the possibility of their dismissal at the initiative of the employer, if it is not related to the liquidation of the organization. But at the same time, the management of the organization is allowed to fire pregnant women who:

• temporarily replace an absent employee, who retains his position after dismissal;
• work under a fixed-term employment contract.

However, an employer, when terminating an employment contract with a pregnant woman, must comply with all the rules and restrictions specified in Art. 261 of the Labor Code of the Russian Federation and other labor law norms.

Termination of an employment agreement on maternity leave

The nuances of a fixed-term employment agreement come down to ensuring a comfortable process for all participants and, no less important, legal termination of temporary work. In a broad sense, such an agreement can be terminated in the same way as any other - before the end of its validity period:

• transfer to another position (the procedure is the most common - without specific nuances);
• dismissal at the request of the employee (the procedure is traditional - it is enough to notify the employer two weeks in advance);
• dismissal due to circumstances beyond the control of the parties or at the initiative of the employer (everything happens in accordance with the general norms of the Labor Code).

If, when filling a maternity position, a temporary transfer of an employee already working in the company was used, he simply returns to his old position - by order.

A specific situation is of much greater interest - the completion of temporary work in connection with the expiration of the contract - a maternity leaver going to work (either urgently or early). There are also two options here - dismissal and transfer.

In accordance with a fixed-term employment agreement and basic rules of logic, the last working day of the employee replacing the maternity leave is the one that precedes the day she goes to work. Two current employees cannot be in the same staff position, and you can quit or transfer earlier than this day for the reasons listed above.

If the maternity leaver did not return to work (resigned) within the prescribed period, in accordance with Art. 58 of the Labor Code, a fixed-term contract turns into an open-ended one. There is no need to re-conclude it, but it is still worth bringing it into the appropriate form - draw up an additional agreement, changing all the points relating to the terms.

Dismissal

Art. 79 of the Labor Code requires employers to warn temporary employees about the expiration date of the contract three days in advance. Apparently, in order to avoid conflict situations (for example, a maternity leaver suddenly leaves without warning anyone, or a former temporarily disabled employee is given unscheduled sick leave), in the case of replacing an absent employee, this obligation of the employer has been cancelled.

Termination of employment relations occurs in the usual manner, the basis is clause 2, part 1 of Art. 77 TK. Its stages are:

1. Issuance of an order (unified form T-8). The person being dismissed should be familiarized with the document.

   
   The basis for the dismissal order may be the application for the leave of the maternity leave and the corresponding order, and if it is issued on time - the fixed-term employment agreement concluded with the dismissed person

2. Making payments is mandatory on the last working day (this must be preceded by drawing up a timesheet taking into account dismissal).
3. Making an entry in the work book, personal card form T-2, notice of dismissal to interested government agencies.

   
   Only a record of dismissal (if the dismissal occurs after the expiration of the contract) will indicate that the work was temporary

Translation

It also happens that a temporary employee has shown himself to be a good performer (the management does not want to part with him), and at the time of the expiration of the employment agreement with him, there is a suitable vacancy in the company. If the employee also agrees to continue working, the situation is resolved by a simple transfer.

The company where I work has a predominantly female team (maternity leave is not uncommon). Therefore, it often happens that during his working life an employee goes through more than one, or even two, maternity places. By skillfully rotating personnel, our management developed the confidence among the team that if you have good business qualities, there is no need to be afraid of a temporary position - you will definitely (perhaps even more successfully) be transferred in anticipation of the end of the employment contract. By the way, an even more extraordinary (but completely legal) thing is practiced - “switching” an employee on sick leave and employee vacations at intervals when there are no more or less permanent positions, but they are planned in the future, and the employee is good and you don’t want to let him go. I myself have more than once found myself as such a “very temporary worker,” but I don’t regret it at all (the only negative is that the work book is excessively covered with translations).

There are no specifics to such a transfer - it is made either at the request of the employee, or by notifying the employer of the availability of a vacant position with an offer to fill it (of course, the employee’s consent is required). The procedure is as follows:

1. Receipt of a supporting document (application with the manager’s resolution or notification with the employee’s consent).

   
   There are no special features in the transfer application - the employee’s current position does not affect anything

2. Drawing up an order (unified form T-5). The employee must be familiarized with the order.

   
   The transfer order is issued in form T-5

3. Concluding a new employment agreement, entering information about the transfer into the work book, T-2 card.

Is it possible to dismiss an employee in this position on this basis?

A fixed-term employment contract with a pregnant woman can be terminated, but there are some nuances. So, the basis for dismissal, in accordance with Parts 2 and 3 of Art. 261 of the Labor Code of the Russian Federation, only two circumstances can serve:

• the employee who is being replaced by a pregnant woman returns to work;
• the contract expires.

Most often, replacement employees are invited when the main employee goes on maternity leave (for pregnancy and childbirth and (or) child care). This situation has the unofficial name “maternity rate”.

It’s paradoxical, but often employees on maternity leave themselves soon go on maternity leave. If the main employee returns, the employer is required to:

• offer pregnant employees vacant positions on a permanent basis;
• create all the necessary conditions for working in a new position in her position (the workplace must comply with SanPin standards, the conditions themselves must not allow excessive workload, etc.);
• dismiss the employee and, in case of refusal, move to another position.

A temporary employee who wishes to extend a fixed-term contract until the end of her pregnancy or maternity leave (if the contract expires after going on leave) must do the following:

• submit a written application to the employer to extend the employment relationship;
• provide a certificate confirming pregnancy;
• provide this certificate every 3 months (if required by your boss).

The head of the organization is obliged to pay maternity leave benefits to a temporary employee with whom the employment contract was extended until the end of this leave.

The amount of the benefit, in accordance with Art. 6 Federal Law No. 81 of May 19, 1995 “On state benefits for citizens with children” is 100% of the average salary. In this case, it does not matter under what contract the maternity worker works: fixed-term or temporary.

Reference. An employer who has not received a written application from an employee to extend the employment relationship has the right to dismiss her, but only within 1 week from the moment he learned about her situation.

Is it possible to fire a woman on maternity leave at her own request?

Women on maternity leave retain their jobs. Before going on maternity leave, they receive maternity benefits, and after the birth of a child, the employer pays them a monthly allowance until the baby is 1.5 years old. This allows a woman not to think about finances and devote herself entirely to caring for the child.

In such conditions, women rarely think about quitting, because getting a new job in this situation is quite difficult, and depriving yourself of a job and a stable income is inappropriate.

At the same time, the law does not prohibit an employer from firing women if they themselves express a desire to leave. And sometimes, unscrupulous employers try to use this “loophole” in the law, forcing such women to write a statement of their “own” desire. Of course, there is no need to follow the lead of management in such a situation. But, even if the application was written under threat or pressure from the employer, such dismissal can be challenged in court and reinstated in the workplace.

What rights does the expectant mother have under the Labor Code of the Russian Federation?

The rights of an expectant mother hired under a fixed-term employment contract are regulated by the Labor Code of the Russian Federation.

• Article 58 warns that dismissal must be notified no later than 3 days before termination of the contract. However, there is no need to comply with this deadline when a permanent employee returns to work.
• Article 77 states that after the end of pregnancy, an employee can be dismissed within 7 days. If this is not done, the employment contract is not terminated.
• Article 261 guarantees the right of the expectant mother to retain her job, regardless of the circumstances, until maternity leave.
• Article 79 states that the relationship must end after a maximum of 5 years, unless the employee and employer wish to extend the relationship.

Article 79. Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.

An employment contract concluded for the duration of a specific work is terminated upon completion of this work.

An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

An employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

Child care and settlement

It is illegal to fire a colleague who is on parental leave. If this happens, then the woman should go to court to resolve disputes with the employer. If it is not possible to be reinstated, then at least it will be possible to secure monetary compensation.

The employer may be subject to a fine of up to 5 thousand rubles. A private entrepreneur can even have their activities suspended for up to 3 months. Penalties for legal entities can reach 50 thousand rubles.

If a colleague leaves parental leave early, it is also envisaged that she will retain her position.

How to behave upon the return of a permanent employee?

Not only the return to work of a permanent employee who is replaced by a pregnant woman can cause dismissal. A woman must provide a certificate of her condition in order to qualify for an extension of the contract.

The possibility of dismissal is given to the manager even when the woman herself requests it.

• the expectant mother should be notified of her rights by signing the appropriate documents, so that if she changes her mind, there will be no problems in court: often women deny the fact that they were notified that the contract could be extended, that vacancies were offered, and insist that the dismissal is illegal ;
• if a woman does not resign due to pregnancy, she will need to confirm her condition with medical documents;
• at this time an additional agreement is concluded with her, since the term of the fixed-term contract is extended;
• after the termination of pregnancy, the usual terms of the contract begin to apply;
• within 7 days after the end of the “interesting position” the woman should be fired, otherwise it will be much more difficult to do this later;
• notice of dismissal must be given 3 days before;
• Full payment must be made on the last day.

The fulfillment of all these conditions is necessary for strict compliance with the dismissal procedure.

Payments and benefits to temporary workers

When working under a fixed-term contract, the same provisions apply to the employee as to main employees. For example, like any other insured person, a temporary employee has the right to count on benefits that are paid from social insurance. Such as benefits in connection with maternity or temporary disability.

Upon termination of the employment contract, an employee hired for a temporary period has the right to payments:

• wages – paid on the employee’s last day at work, includes bonuses and allowances;
• compensation for unused vacation - also payment occurs on the last working day, having previously calculated the unused vacation;
• severance pay - only those temporary employees whose contract period does not exceed 2 months can receive it, and only if this is provided for in an employment or collective agreement. Other employees do not have the right to count on this payment.

How to ask a maternity leaver to leave her position?

Possible options for dismissing a maternity leave may include the return to work of the employee she is replacing, termination of the organization’s work or the end of the work period if it is temporary or seasonal, termination of pregnancy, or mutual consent of the parties to terminate the contract.

However, there are precedents when a manager did not know about pregnancy and fired an employee, and then this dismissal was declared illegal.

If documents are properly completed at the time of hiring, even pregnancy cannot become a reason for continuing the employment relationship with a person who was hired for a certain type of work or for a certain period.

Employer's liability

The law protects the rights of the expectant mother especially carefully. And the employer faces serious liability for violating them. No one has the right to refuse to hire an expectant mother if there is a vacancy in the organization and the employee’s qualifications allow her to cope with her responsibilities.

If the dismissal is declared illegal, the employer will be obliged to reinstate the woman at work in compliance with all procedures, pay for forced absences, if any, and also pay compensation for moral damage caused.

Actions of the worker

It is a woman’s responsibility to properly arrange her maternity leave. To do this she needs:

• bring the employer a sick leave certificate indicating the specific date of going on maternity leave;
• to write an application;
• receive all payments.

According to the law, the expectant mother, if there are no health complications, can go on vacation at 30 weeks of pregnancy.
But according to the doctor’s instructions, this period can be postponed to 27 or 28 weeks. You should know that if a woman wants to go on maternity leave later than the established period, then sick leave will still be issued from 30 (27, 28) weeks. And the employee will not receive wages for overtime, since, according to the law, she must already be on vacation. As for payments, in addition to wages and compensation for vacation, the expectant mother receives a one-time maternity benefit. When taking out maternity leave, the employer pays her another type of benefit, but this time on a monthly basis. It’s worth mentioning separately about annual leave. Even if an employee worked less than six months before pregnancy, she can still take advantage of two weeks of rest before maternity leave.

A woman can leave maternity leave at any time, without waiting for 1, 5 or 3 years. At the same time, the labor legislation does not indicate that the employee in this case must warn the boss in advance. She can submit an application for early leave from maternity leave even the day before returning to work. At the same time, the employee retains the right to go on maternity leave again if it has not ended.

As for the application, its preparation is not mandatory. But a woman must warn her boss that she is about to begin performing her professional duties. This can also be done orally over the phone.

As soon as the employee returns from vacation, the temporary employee is immediately fired. Management is also not obliged to warn him about dismissal in advance. The term of dismissal depends on the paperwork, so a person can lose his job in just a few days. Accordingly, no work is provided for such employees.

Is it possible to be fired?

Fixed-term employment contracts are used in enterprises of all forms of ownership. Labor relations in this case are regulated by various articles of the Labor Code of the Russian Federation.

Thus, the conclusion of a contract falls under the provisions of Art. 59. The main distinguishing feature of such an employment contract is the determination of the exact date of dismissal of the person hired.

If by the time the validity period expires the employee’s special status (her pregnancy) is confirmed, then the working relationship moves into another legal field. Russian legislation defines additional privileges for this category of working women (Chapter 41).

Based on Art. 261 the employer does not have the right to dismiss such an employee if she has taken the following actions:

• I applied to increase the period of validity of my work contract.
• She presented irrefutable evidence of her position.

In this situation, the manager must postpone the date of dismissal and provide the employee with all additional guarantees.

In what cases can a pregnant woman be fired?

Work under a fixed-term employment contract, even if pregnancy is documented, can still be terminated. There is a main legal reason for this - the initiative to terminate the employment agreement coming from the pregnant woman herself.

It is also permitted to dismiss a female employee replacing an employee if he returns, provided that the employer has no vacancies or the pregnant woman refuses to move to another job.

Dismissal of a pregnant woman is also permissible in the event of liquidation or reorganization of an enterprise.

Dismissal when the replaced employee returns to work

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

This point is also regulated by Article 261. If, during the pregnancy of an employee, the specialist in whose place she was hired returns to work, dismissal is possible, but subject to certain conditions.

The expectant mother is obliged to return the position to the returning employee. The management provides the pregnant woman with information about all possible vacancies that correspond to her position and qualifications. If a woman has given her written consent, she can be transferred to a position with a different salary and qualifications. The location must be appropriate for the health condition.

Management may raise the issue of terminating the employment relationship if the following facts occur:

• Birth of a child;
• Termination of pregnancy for other reasons.

Alert

Three days before the final date of return to work after leave under the employment and labor regulations, the manager is obliged to send the employee a written notification about the end of the fixed-term employment contract.

The written notification is issued in accordance with the form adopted by the enterprise. It contains the following mandatory information:

• FULL NAME. dismissed employee.
• Position held, indicating the workshop, department, etc.
• Reason for dismissal with mandatory reference to the relevant paragraph of legislation (Article 79).
• Background information about the company with all the necessary details.
• Date of preparation.
• FULL NAME. responsible person and his signature.