Return of the main employee from maternity leave as grounds for dismissal

Home / Labor Law / Dismissal and layoffs / Dismissal

Back

Published: 04/22/2016

Reading time: 8 min

0

11965

Before an employee goes on maternity leave, the employer is faced with the task of finding a temporary replacement for her.

Sometimes this is done by transferring another company employee to her place or registering an internal part-time job. However, the most convenient way that is used in practice is hiring a new employee .

It is worth determining what conditions the employer must fulfill when further dismissing such a temporary employee and how to carry out this procedure correctly.

• Status and legislative regulation of the work of temporary employees
• Algorithm for dismissing an employee Receiving information from the main employee about returning to work
• Issuing an order for an employee to return to work early
• Warning about the upcoming dismissal of a temporary employee
• Documentation of the procedure
• Carrying out all necessary settlements with the employee

general information

Labor legislation allows temporary employees to be hired for periods when the main employee is absent. Most often, this method is used when a subordinate cannot perform his duties for a long time, for example, while on maternity leave.

Then management finds a suitable candidate and concludes a fixed-term contract with him. This can be either a person already doing work in the company or an outside employee. Experts advise not to indicate in the document a specific date when the main employee will return to work. After all, a woman can extend her maternity leave. Therefore, it is better to indicate that the contract will be terminated after the main employee returns from maternity leave.

Based on Article 79 of the Labor Code of the Russian Federation, the basis for termination of a fixed-term contract is the return to work of the main subordinate. You should know that the employee is not obliged to warn her employer in advance about leaving maternity leave. For his part, the boss is also not obliged to notify the temporary subordinate of his dismissal in advance. This does not violate the person's rights, since he is aware of the temporary nature of his work.

Legislative regulation of the issue

An employer can transfer an employee from another department or hire a new person to take the place of a maternity leaver. He must resign immediately after the main employee returns to perform his duties.

The term “maternity rate” is not declared in documents that have regulatory legal status, so for the most part this concept is colloquial. The term itself refers to a vacancy that is created in order to temporarily replace an employee during maternity leave or parental leave.

The duration of work at a temporary rate depends on the specific situation - it can be several months or the entire period of parental leave, that is, 3 years. All this time, the main employee has the right to her position; the employer cannot fire a woman who has gone on maternity leave. This provision is enshrined in the Labor Code of the Russian Federation in Art. 256.

Dismissal procedure

Such an employee can easily get laid off or quit on his own. But most often the contract is terminated due to the return of the main employee.

The dismissal of a temporary employee occurs as follows:

1. An employee returning from maternity leave writes a statement and indicates her desire to interrupt her leave. The document can be submitted even on the eve of return, since there are no specific deadlines.
2. The employer is obliged to issue an order for the employee to leave.
3. The temporary subordinate is informed of the dismissal.
4. The procedure for terminating the contract is being completed.
5. The fired person receives documents and money.

If a woman goes to work on time, then she does not need to draw up any documents. But if she needs to return from vacation earlier, then a statement is written. According to the rules, it must contain:

• a request to terminate the maternity leave;
• desire to begin performing professional duties;
• date of return to your position.

Advantages and disadvantages of maternity leave

The main disadvantage is the temporary nature of such work, that is, an employee who agrees to a maternity rate must clearly understand that after a certain time he will be fired or transferred to another place of work. Also among the disadvantages of such employment are the following nuances:

1. Uncertainty of work deadlines. A woman can be on maternity leave for all 3 years or the first few months. Sometimes an employer may not even provide 2 weeks' notice of a potential dismissal.
2. No guarantees. Dismissal in this case is made according to circumstances, as soon as the maternity leaver returns from vacation. There are no social protection or compensation payments.

Despite all the disadvantages, such work has a number of advantages. The main advantage is that there are always fewer applicants for a temporary position, so the selection is not so tough. Temporary employment provides an opportunity to gain new experience and skills. If a person performs well, he will have a chance to transfer to another equally paid position.

The maternity rate is temporary, but the employer must provide the new employee with the right to sick leave, vacation, as well as a salary, the amount of which will not be less than that of the employee who went on vacation. The time a person spent on maternity leave is entered into the work book in the usual manner.

Calculation

Dismissal in connection with the return to work of a “maternity leaver” is carried out quite simply. The last stage is the issuance of the necessary funds and documents. Therefore, all calculations must be made before a person leaves. The employee has the right to receive:

• wages;
• vacation compensation;
• payment of sick leave;
• all necessary bonuses and rewards.

If you fire a temporary employee, you cannot force him to work for two weeks. There is no information about such work in labor legislation. Moreover, if this does happen, the employee has the right to complain about the boss to the labor inspectorate or the prosecutor's office.

Payments and compensations

Full payment to a temporary employee is made on the last day he is at work. Payments must include:

• salary for the period of work;
• compensation for unused vacation;
• severance pay.

Payments must be made on the employee’s last day at work; funds can be transferred to a bank card or handed over. If payment is not made on time, the head of the enterprise may be held administratively liable, therefore compensation and payments must be made in a timely manner.

Important nuances

Despite the fact that the procedure for dismissing such an employee is very simple, sometimes difficulties may arise. There are several categories of employees with whom it is very difficult to terminate an employment contract. Therefore, it is important to know about all the nuances:

1. A person works part-time. He can work in several positions in one company or several. It doesn't matter. To avoid problems with the dismissal of such an employee, it is necessary to conclude a fixed-term agreement with him.
2. The temporary worker also went on maternity leave. The employer pays her all the necessary benefits, but if the previous employee returns to work, the temporary employee will be fired. This is one of the few cases where such an employee can be legally fired.
3. The temporary employee is pregnant. It would seem that the employer cannot deprive her of working meth. But, according to the law, termination of the employment agreement is a completely legal basis for this. Another thing is that the director is obliged to offer a pregnant employee suitable vacancies before dismissal and fire her only in case of refusal.
4. The employee is on vacation. Termination of the employment contract is still carried out. A person's stay on vacation is not a basis for its extension.
5. He's sick. Then the dismissal occurs on the last day of his illness. The date must be indicated on the medical certificate.

The director carries out the dismissal of a temporary employee in connection with the main employee's return from maternity leave on the basis of labor legislation. However, legislative acts do not contain special norms that would protect his rights. A person replacing another employee can easily be fired without even having time to find a new position.

Entry into the work book

The work book is one of the fundamental documents.
Every employed Russian citizen should have it. If an employee gets a job for the first time, then his employer is obliged to properly prepare the specified document. When making an entry in the work book of a resigning specialist, you must indicate the name of the enterprise, as well as the number and date of conclusion of the employment agreement. In addition, upon termination of the employment relationship, the director of the enterprise is obliged to indicate the reason for the termination of cooperation. To do this, a reference should be made in the work book to the corresponding article of the Labor Code of the Russian Federation. It should also indicate the number of the order according to which the relationship between the employer and the employee ends.

Drawing up a fixed-term employment contract allows you to replace an employee who is temporarily absent with another specialist. However, the employer can legally fire such a person when the main employee decides to begin his duties. But we must remember that the process of ending the relationship with a temporary worker must comply with the standards enshrined in the labor legal acts of the Russian Federation.

Notification of an employee about the return to work of the main employee sample

Contents of LLC "Company" Sidorov Sidor Sidorovich tab. number 2222 head of the sales department Dear Sidor Sidorovich, we warn you that the term of the fixed-term employment contract No. __________________ dated ___.____.201___. concluded with you ____.____.201___

We recommend reading: What Documents Are Needed to Get an Apartment for an Orphan

1 tbsp. 79 Labor Code of the Russian Federation). It makes sense to issue the notice in two copies and ask the employee to sign and date the organization’s copy. In case of claims, the employee’s signature will prove that the notice was delivered to him.

What payments are due to a maternity leaver?

The procedure for payments to women on maternity leave is regulated by Federal Law No. 255 of December 29, 2006.

A woman on maternity leave is entitled to receive payments calculated on the basis of the average salary based on the results of a two-year period of work before going on maternity leave, taking into account the established minimum wage (minimum monthly wage), which from January 1, 2019. equal to 11,280 rubles.

Maternity benefits are paid in one lump sum and in total. The company's accounting department is provided with a sick leave certificate received at the antenatal clinic at 30 weeks of pregnancy.

If a woman quits before the deadline for receiving sick leave, then at this enterprise she loses the opportunity to receive payments.

If the dismissal occurs immediately after childbirth, then the mother receives only the first part of the benefit at this enterprise (on average for 70 calendar days). She will receive the second part of the benefit at the new enterprise or at the social security authorities.

If a woman nevertheless decides to leave on maternity leave of her own free will and a more profitable job does not await her, it is better to receive all parts of the benefit at her enterprise and write a letter of resignation on the last day of maternity leave.

Sample notice of dismissal of an employee

Notice of the dismissal of an employee is sent not only to the dismissed person, but in some cases also to the trade union. You should pay attention to the notice periods, which vary depending on the conditions and grounds for dismissal, and to certain nuances of filling out the notice.

The employer and the employees he hires are bound by mutual obligations, one of which is the obligation to provide notice of dismissal . The Labor Code of the Russian Federation and other laws determine who, whom and for how long warns about dismissal :

Do they have the right to fire while on maternity leave?

Family Law {amp}gt;
Decree {amp}gt; Do they have the right to fire while on maternity leave? Pregnant women and young mothers with small children are the most vulnerable and unprotected part of the population. Therefore, the legislation has provided them with some privileges and benefits that protect their professional interests.

In accordance with the Labor Code of the Russian Federation of 2021, dismissal of a pregnant employee or the mother of a small child under three years of age on maternity leave at the initiative of the employer is strictly prohibited.

In this document you can find a list of exceptional cases in which an employee on maternity leave can be fired.

Even if positions or the number of personnel are reduced, or a fixed-term employment contract ends, the head of the enterprise must offer the employee another job. To do this, you need to wait until he returns to work from maternity leave.

Dismissal during maternity leave at the employee's own request is provided for in Article 80 of the Labor Code of the Russian Federation.

In this case, the employee submits a completed application in writing to the employer at least two weeks in advance of the date on which he plans to complete the work.

This period is provided for by law so that the employer has time to prepare all the necessary documents, calculate the payments due to the employee and find a person who can replace him in the workplace.

In addition to the employment contract or in the document itself, it may be stipulated that when leaving at your own request, there is no need to wait until two weeks have passed from the date of notification to the employer.

This means that dismissal can occur on the same day that the employer receives the application.

On the day of dismissal of an employee, the retention of his job ceases.

On the same day, he will have to be issued a work book and make final payments, for example, pay compensation for unused vacation before maternity leave.

If the employee needs copies of other work-related documents, he will have to write a statement.

While on maternity leave upon dismissal, an employee does not always have the opportunity to visit the workplace to pick up all the necessary documents.

Therefore, the Labor Code of the Russian Federation stipulates that if a person does not show up for work on the last day to get a work book and paycheck, then the employer sends a notification to his address indicating that the employee should come to the enterprise and pick up the necessary documents.

Upon this notification, the employee can give his consent to the employer to send documents by mail.

If he does not do this, he will be able to pick up the papers no later than 3 days from the date of receipt of a written request for their issuance by the employer.

Many women are concerned about whether they can be fired while on maternity leave. And these fears are not at all groundless.

An employer has the right to dismiss an employee in certain cases provided by law.

In addition to voluntary dismissal, there are several other options for removal from office. One of them is the dismissal of a woman on maternity leave under a fixed-term employment contract.

In most cases, a temporary employment contract is concluded with a temporary employee on maternity leave, which terminates from the moment the permanent employee returns to the workplace.

This means that when the previous employee returns to work, a termination order is issued due to the expiration of the contract period, which the temporary employee reviews and resigns.

In a situation where young professionals do not know how to fire an employee on maternity leave, some points should be taken into account.

Liquidation of a company can occur at any time. Indeed, in accordance with the law, during the liquidation of an enterprise there are no special features for the dismissal of pregnant women and women on maternity leave.

This is the only reason why a pregnant woman can be fired before maternity leave in accordance with the law. In all other cases, the employer cannot legally fire an employee who is expecting a child.

Dismissal of employees on maternity leave during liquidation of an organization is carried out in the same manner. If an enterprise is reorganized, its staff is reduced, and it remains in fact existing, then women retain their jobs.

At the same time, the employer does not have the right to fire a pregnant employee or ask her to write a statement of her own free will.

Upon liquidation, all employees must be officially notified and must be paid severance pay and two months' wages.

Payments to a pregnant employee upon liquidation of an enterprise:

1. Severance pay, which is equal to the amount of monthly earnings.
2. The amount of the average salary for the period of employment, but not more than two months’ salary.
3. If an employee is dismissed earlier than the established deadline, he is entitled to additional compensation for the period of employment.

What awaits women on maternity leave:

1. The organization has the right to dismiss an employee by sending her a notice of liquidation, but no later than two months in advance.
2. Managers will pay severance pay in the amount of the average monthly salary and two times the average monthly salary for the period of employment.
3. After dismissal, a woman must register with the employment service within two weeks.
4. After the birth of the baby, upon dismissal, benefits will be accrued in social security.

When applying to social security, women must prepare the following documents:

• work book;
• dismissal order;
• salary certificate for the last two years;
• certificate 2-NDFL for the last three years;
• a copy of the application for parental leave;
• application for recalculation of benefits;
• application for recalculation of benefits, if any;
• document confirming parental leave;
• a copy of the sick leave certificate.

Dismissal during maternity leave is also possible by agreement of the parties. This is one of the ways to terminate an employment relationship with a non-working employee.

In most cases, the initiator is the employer. Such an agreement is concluded with the employee and does not require her to write a statement and work out.

When an employee is dismissed by agreement of the parties, she is paid all the necessary funds. After this, the woman hands over all inventory items.

If the parties agreed to terminate in one day, then on the day the agreement is concluded, the employee can receive paychecks and her work book.

The Labor Code of the Russian Federation contains a list of persons who are not subject to dismissal at the initiative of the employer. Namely:

• pregnant women;
• women who have small children under three years of age;
• single mothers, until the child turns 14 years old;
• other persons who raise children under 14 years of age without a mother.

The question of whether a husband can be fired during his wife’s pregnancy does not lose its relevance.

When reducing personnel at an enterprise, the employer has the right to dismiss a spouse if his wife is on maternity leave, since he does not fall into any of the above categories.

At the same time, the employer is obliged to offer the employee all available vacant positions, even lower-paid and lower-ranking positions.

If the staff of workers is reduced, then, with equal productivity, preference is given to people with families who have two or more family members, who cannot provide for themselves on their own and are fully supported by the employee.

If a wife is on leave to raise a three-year-old child, she is a dependent for her husband.

The legislation of the Russian Federation provides a large list of grounds for dismissing employees at the request of the employer. The main ones among them are violation of labor discipline, conscription into the army, and recognition of the employee’s incapacity by the court.

Labor legislation protects the rights of pregnant women and mothers on maternity leave. But the Labor Code of the Russian Federation provides for several cases in which it is possible to dismiss women on maternity leave or before maternity leave.

Therefore, women who plan to go on maternity leave should carefully study all possible nuances of labor relations.

Can a woman apply to the labor exchange after dismissal?

As you know, maternity leave continues after the birth of the baby. Thus, a standard leave for labor and labor lasting 140 days means that a woman is on leave for 70 days before giving birth and 70 days after. And if you noticed, above we said about the prohibition of dismissal on the initiative of the employer (with the exception of liquidation) of pregnant women. Does this ban apply to the dismissal of women who are on maternity leave but have already given birth?

So, not only pregnant women are protected by labor legislation, but also women who have a child under three years of age (Article 261 of the Labor Code of the Russian Federation), including those who have just given birth and are on maternity leave. It is also prohibited to dismiss such workers at the initiative of the employer, with the exception of certain cases (clause

• liquidation of the employing organization/termination of the activities of the individual entrepreneur;
• repeated failure by an employee to fulfill her job duties without good reason, if she has a disciplinary sanction;
• one-time gross violation of labor duties (for example, absenteeism);
• submission of false documents by an employee when concluding an employment contract.

If we think logically, it turns out that, in fact, there are practically no grounds for dismissing a maternity leaver. After all, while on leave under the BiR, a woman cannot skip work or repeatedly fail to fulfill her work duties.

After dismissal, a woman can apply to the labor exchange. In this case, she will no longer be paid child benefits, but will be paid unemployment benefits. The minimum amount of such a benefit in 2021 is 1,500 rubles. Moreover, obtaining it can be very uncertain. If there are two refusals of the offered vacancies, the benefit will not be paid.

If a woman is going on maternity leave or is on maternity leave, and circumstances are such that she needs to resign, she can do this by submitting an application of her own free will. But before taking such a step, you should carefully weigh the pros and cons. When you quit, you can significantly lose out on receiving B&R benefits.

Notification of an employee about the return to work of the main employee sample

Author: Table of Contents If you find an error in the text, please let us know by highlighting it and pressing Ctrl+Enter Subscribe to the HR Club news Once a week we will send the most important articles to you by e-mail to experts Do you have a question?

The court may declare such dismissal illegal. June 01, 2021 at 09:24 Like any employee, the chief accountant has the right to leave the company on his own initiative. The process of terminating an employment contract must occur in compliance with all norms of the Labor Code of the Russian Federation.

Dismissal at will during sick leave

resign of your own free will while on sick leave . The law prohibits such dismissal only at the initiative of the employer.

An employee has the right to apply for dismissal during a period of temporary incapacity for work. A situation may also arise when the previously agreed upon dismissal date falls on the sick leave period. In this case, the employer will formalize the dismissal on the day specified in the resignation letter, provided that the employee has not withdrawn this application. The employer does not have the right to independently change the date of dismissal.

On the last day of work, even if it falls on sick leave, the employer makes the final payment and issues a dismissal order, in which he makes a note about the employee’s absence and the impossibility of familiarizing him with the order. The employee will come for the work book after recovery or, with his consent, it will be sent to him by mail. All amounts due to the employee will be paid to him no later than the next day after he submits the corresponding demand. However, temporary disability benefits will be assigned by the employer within 10 days from the date of granting sick leave and paid on the next day after the appointment, established for the payment of wages in the organization.

Sample notice of resignation of the main employee and proposal for transfer

You will find samples of employment contracts: employment contract, employment contract with the General Director, fixed-term employment contract, termination of the employment contract, additional agreement to the employment contract, collective labor agreement, etc. SCHEDULE. OPERATING MODE. Follow the link and you will become familiar with the internal labor regulations, working hours and production calendar. DISMISSAL Follow the link and you will familiarize yourself with the application for resignation at your own request, samples of filling out a work book, absenteeism reports, etc. JOB. Follow the link and use the advanced job search.

From the day the notification is sent, the employer is released from liability for the delay in issuing the work book (part. If he does not agree and refuses to sign the notification, then it is necessary to draw up an act of refusal. The employee must be offered other vacant positions that are suitable for the level of health and qualifications of the employee. If the employee refuses all offered positions, then the employment contract with the employee is terminated and a dismissal order is issued. The form is drawn up in free form. An approximate sample of the form can be downloaded below. It is reasonable to include in the form the full name and position of the employee, the date and place of issuing the notice, the name of the new position and the corresponding salary level.The notification is signed by the head of the organization and handed over to the employee personally for review.

Sample notice of resignation of the main employee and proposal for transfer

The replacement employee does not need to be notified of the upcoming transfer to his previous place of work. This conclusion is confirmed by the following facts. The current legislation does not define a detailed procedure for completing the procedure for terminating a temporary transfer. According to the general rules, it is only established that after the expiration of the temporary transfer period, the employee must be given his previous job. If at the end of the transfer period the employee does not return to his previous job, then the temporary transfer becomes permanent. Thus, given that there are no rules of law requiring the employee to be notified of the termination of a temporary transfer (similar to how employees are notified upon termination of a fixed-term employment contract), a temporarily transferred employee need not be notified of the upcoming transfer to his previous place of work.

If he is not satisfied with the employer's offer, he gets enough time to look for another job. For an enterprise, this document is also important - it allows you to respect the rights of a subordinate and protect management from claims from the labor inspectorate and other regulatory structures. In addition, if an employee informs in advance that he is not interested in the employer’s offer and prefers to quit, the latter also gets some time to search for a replacement for the employee.

Notification to an employee about the return to work of the main employee sample

The notice period begins the day after the employee receives the notice.
The employer may notify the employee in advance of the upcoming dismissal. But he does not have the right to shorten the notice period or dismiss an employee without proper notice. It is important for the employee to remember that Part 4 of Art. 58 of the Labor Code of the Russian Federation establishes: “In the case when neither party requested termination of a fixed-term employment contract due to the expiration of its validity period and the employee continues to work after the expiration of the employment contract, the condition on the fixed-term nature of the employment contract loses force and the employment contract is considered imprisoned for an indefinite period.” To summarize, Notifying an employee of the termination of a fixed-term employment contract due to the expiration of its term is a mandatory procedure for the employer. Your problem - use the online consultant form in the lower right corner of the site or call direct numbers: +7 (499) 653-60-72 ext.445 - Moscow - CALL ext.394 - St. Petersburg - CALL here - if you live in another region. It's fast and free! CONTENT:

Notification of a temporary employee about a permanent employee leaving maternity leave

It’s possible even on the same day, because this is exactly the case “when a fixed-term employment contract concluded for the duration of the duties of an absent employee expires” (Article 79 of the Labor Code of the Russian Federation). You just need to understand that if you are fired on the day of notification, then there must be a settlement on the same day, and the banking day for transferring salary to the card is usually before 12.00

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 , except in cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.