Dismissal after maternity leave: what compensation can you receive in 2021

What to do in a situation where an employee hired for the period of maternity leave goes on maternity leave, another employee is hired in her place on a fixed-term contract, and the main employee decides to quit? Which of the two conscripts has an advantage to occupy a position under an indefinite employment contract?

When an employee goes on maternity leave and then on parental leave, the employer, in addition to completing all the necessary documents, has a question: who will replace the employee for this period? Most often, a newcomer is accepted into a temporarily vacant position under a fixed-term employment contract. However, he may also go on maternity leave, and the search for a replacement employee begins anew. Suppose a replacement is found, but the main employee decides to quit. And here temporary workers become more active, applying for a permanent job. Do they have priority? Can an employer refuse to sign an employment contract for an indefinite period and hire a newcomer “off the street”? Let's figure it out. Based on Art. 255 of the Labor Code of the Russian Federation, women, upon their application and on the basis of a certificate of incapacity for work issued in the prescribed manner, are granted maternity leave for a duration of 70 to 110 days, depending on the course of pregnancy and childbirth. And according to Art. 256 of the Labor Code of the Russian Federation, at the request of a woman, she is granted leave to care for a child until he reaches the age of 3 years. At the same time, during the said vacations, employees retain their place of work. Quite often, to replace an employee who has gone on maternity leave, a newcomer is hired under a fixed-term employment contract. Let us recall that Art. 59 of the Labor Code of the Russian Federation allows you to establish the duration of the employment relationship only in certain cases, in particular, this can be done for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local the place of work is preserved by regulations and employment contracts. By virtue of Part 3 of Art. 79 of the Labor Code of the Russian Federation, an employment contract concluded for the duration of the duties of an absent employee is terminated when he returns to work. In the situation described above, the main employee decided to quit. Accordingly, the question arises: what to do with temporary employees, one of whom is also on maternity leave?

Dismissal after maternity leave

The entire time a woman is on leave for employment and labor, and then to care for a child, she retains her job. And if the need arises, a new employee is hired in her place to temporarily perform her duties. An employer cannot fire a woman on maternity leave on his own initiative. In this case, it will not matter whether the woman is a single mother or is raising a child in a complete family. A maternity leaver can only make a decision about dismissal herself. The only exceptions are situations when a woman works under a fixed-term contract, as well as liquidation of the employer company (

basic information

An employee cannot be laid off during any vacation. This point also applies to the entire period of maternity leave. According to the Civil Code of the Russian Federation (Articles 191-193), leaving maternity leave will be required the next day after the child turns three years old. It is on this day, that is, on the first working day, that a reduction can occur. In order to understand what payments will be in the future after the reduction, you will need to calculate the average earnings. Payouts on the exchange also depend on average monthly earnings.

Important! The woman retains her position for the entire period of maternity leave. If another employee was hired in her place, he will need to be fired on the day the main employee leaves. This procedure is regulated by Article 79 of the Labor Code of the Russian Federation.

The position will remain with the woman for the entire period, including on the last day of vacation, when the child turns 3 years old. It turns out that in order to be made redundant, a woman must completely leave maternity leave. A maternity leaver who has returned from leave ahead of schedule cannot be laid off, since the child is not yet three years old.

Important! During maternity leave, reduction is possible only with a full process of liquidation of the enterprise.

The employer's actions when laying off women who have returned from maternity leave are standard:

• a reduction order is issued for the specified reasons;

Sample order for job reduction

• It is required to notify the employee at least two months in advance that after returning from vacation he will be laid off;

Sample notice of job reduction

• new jobs are provided if available;
• All employment agreements must be in writing. This also applies to consent to transfer to another position;
• If a woman refuses to continue working in a new position, then on the first working day after her vacation she is laid off and a full settlement is made with her.

It is worth considering that if the notice was sent later than two months in advance, then the woman will need to work the remaining time and only after that she will be reduced. All processes are carried out on a general basis. This means that after returning from maternity leave, a woman has all her rights, including the possibility of early dismissal.

Notification of a maternity leaver about future dismissal is carried out according to standard regulations in accordance with Article 180. The notice must be given to the employee in any convenient way, including by mail. The fact of receipt of the notification is the day from which two mandatory months are counted.

Important! The employee's position is not removed from the staffing table until he returns from maternity leave. A new schedule may already have been drawn up, but the corresponding order to eliminate the position is signed during the employee’s working hours.

Read on topic: Maintained earnings during employment during layoff

Read on topic: Sample notification to employees about cancellation of staff reduction

Dismissal at your own request

A young mother can resign of her own free will at any time. At the same time, she also retains the obligation to work for two weeks after writing the application. Often a woman writes an application much earlier than this period, so that this two-week period of time falls at the end of maternity leave, that is, so that in fact the woman does not have time to start work. The application is drawn up in the name of the director, it is written in free form. At the same time, the main condition in writing an application is to indicate the date of dismissal and the date of drawing up the document. Nothing more is required from the employee. Here is a sample of such a statement.

Estimated payments

Upon dismissal, a woman is entitled to pay. If you had to work the required two weeks, then a salary should be accrued for them in accordance with the salary and rate. The employer is also obliged to pay compensation for unused vacation (read about what payments are due if an employee quits after maternity leave, and from this article you will learn whether money is due for unused vacation periods upon termination of an employment contract).

The amount of payment is determined in the same way as in the general procedure, but the basis for calculation will be the period before going on sick leave for pregnancy and childbirth. In addition, the employee must be accrued severance pay and other supporting payments prescribed in the labor and collective agreements.

Calculation of compensation after dismissal: example

When dismissing a woman after maternity leave, she should be accrued certain payments (127 Labor Code of the Russian Federation). First of all, she needs to be paid compensation for her unused vacation time. In this case, the fact that the woman was on maternity leave will not matter. The payment calculation will be as follows:

First, you need to determine how much time the young mother spends working this year. For example, if she quits immediately after maternity leave, and before that she worked for less than 6 months, then she will retain the right to 14 days of vacation, for which compensation must be calculated.

After this, the time that the woman was on leave under the BiR is determined. In a normal case, the duration of such leave is 140 days, but if the birth was difficult, this period increases. For 140 days of maternity leave, the employee is entitled to 11.67 days of annual leave.

The next step is to determine the employee’s average earnings. To do this, the total amount of payments to the employee for 12 months is divided by 12 months, and then by 29.4. As a result, we will receive the amount of average daily earnings.

To determine the amount of compensation due, the amount of average daily earnings is multiplied by the number of vacation days for which the woman is entitled to compensation.

If an employee writes a letter of resignation after maternity leave, then the calculation of compensation will be different. You need to make the calculation as usual. Those days that the woman was on vacation will not be included in the calculation. And the time spent by the employee at home will not be included in the calculation.

An important point in this case will be determining the number of days of vacation required. If, for example, an employee had already used her allotted leave before dismissal, then she will not be compensated (

How to do this correctly?

Writing an application

The application can be written either by hand or printed. The header indicates the following:

1. To whom: it is necessary to write the position of the manager and the name of the organization in which he is in charge, as well as his full last name, first name, patronymic.
2. From whom: similar to the first point, you need to indicate your position and full name.

The word “Statement” will serve as the title. Then the following wording is written: “I ask you to fire me of your own free will.” Below are the date and signature. It is not at all necessary to write the reason why you need to leave your job.

Attention! If a document is drawn up electronically, it is important not to forget that it still needs to be signed by hand, otherwise it is invalid.

You can also calculate when two weeks have elapsed and write a clarifying sentence: “I request your dismissal to take place on __.__.20__.” It is not recommended to use the preposition “s”, since the HR department may fire you a day earlier. Therefore, it is worth setting a specific date.

The document can be delivered to the addressee in the following ways:

• give in person;
• send by registered mail with notification.

The two-week countdown begins on the next day relative to when the boss received the application.

A sample letter of resignation after maternity leave is attached.

Drawing up an order

It is imperative that with any dismissal, the personnel officer must draw up a dismissal order. In most cases, a T-8 form is filled out for this. Such a document must indicate:

1. Name of company.
2. FULL NAME. and the position of the dismissed employee.
3. Grounds for dismissal.
4. Date of termination of the employment contract.
5. Signatures of the parties.

Preparation of all personnel documents

The entry in the work book depends on the reason for dismissal. It is very important to pay attention to this moment and not take the book without looking.

When leaving work of your own free will, the following entries are legal in the book:

• “dismissed at his own request, paragraph 3 of Article 77 of the Labor Code of the Russian Federation”;
• “dismissed at the initiative of the employee, paragraph 3 of Article 77 of the Labor Code of the Russian Federation.”

The photo below shows a sample entry in the work book about voluntary dismissal after maternity leave.

Receiving a calculation and work book

Few people know that upon dismissal, an employee must be given not only work and medical records (if conditions require it).

When submitting an application for voluntary leave, the employer may, at the employee’s request, issue copies of the following documents:

• The order of acceptance to work;
• order for promotion/change/transfer (if any);
• employment contract;
• additional agreements (if any).

This is regulated by Article 84.1 of the Labor Code of the Russian Federation. The package of documents described above must be issued within three days from the submission of the application for dismissal. The above list can be obtained from the HR department.

In addition to personnel documents, an employee can also take accounting documents.

1. Help 2-NDFL. It contains information about all payments from which tax and insurance premiums were withheld. It may be useful at your next job if you apply for a tax deduction.
2. Certificate form 4H. Displays income information for the last two years. It will be useful in a new workplace in case of going on sick leave. Which, unfortunately, is not impossible for a woman who has just returned from maternity leave. Since at an early age children often get sick. Therefore, it is important to take care of obtaining this certificate. Otherwise, the payments on the ballot will be less.
3. Certificate of income for the last three months. Needed for registration at the labor exchange. Based on the information contained in it, unemployment benefits will be calculated.

Attention! All documents must be certified by the organization’s seal and the “true copy” stamp.

A woman must receive documents and payment no later than on the day of dismissal (Article 140 of the Criminal Code of the Russian Federation). They can be collected not only by the employee herself, but also by another person with a notarized power of attorney from her.

Dismissal after maternity leave

An employer has no right to dismiss a woman with a child under 3 years of age on his own initiative. However, in some cases this may be possible. For example, if a fixed-term employment contract was concluded with a young mother. In this case, the woman has the right to extend it at her own request for the entire period of her pregnancy. To do this, she writes applications and submits them to the employer every 3 months. If no application is received from the woman, then the employer has the right to dismiss her. Immediately after giving birth, the manager can also dismiss the employee unilaterally, on the basis that maternity leave has no effect on the extension of a fixed-term contract. To dismiss the employer, it is enough to notify the woman about this 3 days before the dismissal. The woman must be notified in writing (

Exiting maternity leave: what you need to know

A woman’s right to maternity leave is enshrined in the Labor Code of the Russian Federation, Art. 256. It can be used in whole or in part. Most often, the woman herself goes on maternity leave, but other family members also have the right to maternity leave to care for a child up to 3 years old, with all the rights and responsibilities arising from the law.

Vacation is not prohibited from being shared between relatives. A woman can go to work ahead of schedule, and the remainder of the maternity period will be used by the child’s relatives to care for him.

Important! Care leave is given, on an equal basis with biological parents, to adoptive parents and members of their family on the same conditions (Labor Code of the Russian Federation, Article 257).

The legislator talks about a vacation of up to 3 years, but in fact it is divided into 2 parts:

• up to 1.5 years, when care benefits are paid from the Social Insurance Fund;
• from 1.5 to 3 years, when a small compensation payment comes from the employer’s funds.

Compensation today is only 50 rubles. per month. It is during this period that workers most often interrupt maternity leave.

The employer is obliged to preserve the employee's job. If difficulties arise with this, he can transfer a woman who has left her leave early to another position only with her consent. The administration also does not have the opportunity to fire her on its own initiative. The only reason for dismissal is liquidation of the company.

If a woman wants to both work and use benefits for up to 1.5 years, she is given a schedule for a part-time working week (day), taking into account the maximum standard working time - 40 hours per week (Article 91 of the Labor Code of the Russian Federation).

The duration of working hours must be fixed in the contract, and the transition to part-time work must be reflected in the additional agreement to it.

Part-time work is provided to a woman up to 1.5 years of age along with the payment of benefits (Article 93, paragraph 2, Article 256, paragraph 3 of the Labor Code of the Russian Federation), after which she will be required to work as usual. This rule applies even if the woman’s working day was reduced minimally, for example, by one hour a day. By analogy with part-time work, a woman has the right to work from home without losing her right to benefits.

Attention! If she goes back to work full-time, the payment of benefits and compensation for a child under 3 years of age stops.

What regulations govern sick pay in 2021?

In ch.
2 of the Law “On Compulsory Social Insurance...” dated December 29, 2006 No. 255-FZ, information is disclosed on cases when insured persons have the right to count on sickness benefits, as well as on the conditions and procedure for paying sick leave. We remind you! From 2021, new rules for paying money for sick leave will apply. For more details, see our memo.

Calculating sick leave after maternity leave in 2021 has certain features related to the lack of income in previous years. When calculating sickness benefits after maternity leave, in addition to the law dated December 29, 2006 No. 255-FZ, you should also take into account letters from the Social Insurance Fund dated November 30, 2015 No. 02-09-11/15-23247 and the Ministry of Labor of the Russian Federation dated August 3, 2015 No. 17 -1/OOG-1105. The main idea of ​​these clarifications is that the insured persons should be compensated for their real earnings, but only that which was before the occurrence of the insured event, and not that which was many years ago. This means that the calculation period for calculating disability benefits cannot be any, but must be determined taking into account the established rules.

If you have access to ConsultantPlus, check whether you calculated the benefit correctly if the employee was on maternity leave during the billing period. If you don't have access, get a free trial of online legal access.

Read about the acceptable amounts of disability benefits in the material “Maximum amount of sick leave in 2021 - 2021” .

Statement

An application for dismissal after leaving maternity leave is written according to the general rules established for this type of document:

1. in the header of the application, the full name and position of the head of the company, as well as the full name and position of the employee herself are written down;
2. further, in the center the name of the document is indicated - application;
3. then you need to formulate the essence of the request - dismissal at your own request;
4. indicate the desired date of dismissal (as a general rule, 2 weeks after writing the application, but it is possible to register an earlier date, justifying such a wish);
5. make a reference to the norm of the law (Article 80 of the Labor Code of the Russian Federation, paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation), however, the absence of a reference is not a violation and does not entail a refusal to terminate the employment relationship;
6. the date the document was written and the personal signature of the employee.

The application can be written by hand, printed on a computer, or issued on the company’s letterhead (if any).

The application for dismissal can be submitted to the employer in person, sent by mail or by e-mail, if such a procedure is provided at the enterprise. In the latter case, the document must be signed with the employee’s electronic signature.

Payments

Upon dismissal, the employee must be given certain payments.

They will consist of the following amounts:

1. If there is unpaid time worked, it must be compensated.
2. In some cases, it happens that the employee has one or more vacations that he did not use. Upon dismissal, they are paid according to the average salary of the employee.