Are you firing your “sole breadwinner”? Look for other options!

From the article you will learn:

To answer this question, you should refer to the Labor Code of the Russian Federation. It describes in detail the rights and responsibilities of employers and employees. Workers whose rights have been violated should file a claim and send it to the trade union organization, and then, if necessary, to the prosecutor's office and judicial authorities. The key point in these circumstances is to check the documents held by the HR department of the employing organization that confirm the status of the sole breadwinner. It is also important for employers to know under what conditions the sole breadwinner in the family can be fired and who can be laid off if the situation in the company requires it?

Who is considered the sole breadwinner?

Some guarantees for sole breadwinners are described in Art. 261 of the Labor Code of the Russian Federation, and in Art. 179 of the Labor Code of the Russian Federation defines the concept of “dependents” - these are disabled family members who are fully supported by the employee.

Who is the sole breadwinner in the family?

• parents with disabled children under 18 years of age;
• parents with children under three years old, if there are three or more children in the family and the second spouse does not work;
• single parents with minor children.

For example, an employee who has a disabled minor child is considered the sole breadwinner in a family, if the second spouse is unemployed or disabled.

Important! In most cases, it is impossible to fire women with children under three years of age, single mothers with disabled minors or minors under 14 years of age, as well as other persons raising children alone. This rule applies to both natural parents and adoptive parents and guardians.

Is it legal to dismiss an employee if his wife is on maternity leave and has two children?

When the wife is on maternity leave, all the financial burdens of supporting the family fall on the husband. It is especially difficult for those who already have children. And it seems obvious that such fathers of the family deserve special privileges at the place of their employment. However, the legislator thinks differently. And it does not provide any guarantees for a father who has two children and a spouse on maternity leave.

Only the woman on maternity leave can count on such guarantees; she can be fired only in the most extreme cases, for example, upon termination (liquidation) of the employer.

It might be interesting!

Does an employer have the right to reduce wages?

When is it possible to dismiss the sole breadwinner?

According to Art. 261 of the Labor Code of the Russian Federation, it is possible to terminate an employment contract with a breadwinner in exceptional cases:

• liquidation of an enterprise or termination of the activities of an individual entrepreneur;
• at the employee’s own request;
• in case of systematic failure to fulfill official duties, if there is an outstanding disciplinary sanction;
• in case of a single gross violation: absenteeism without good reason, appearing at the workplace while intoxicated, theft of property of the enterprise or employees, etc.;
• loss of trust on the part of the employer if the employee committed an offense while working with material assets;
• failure to provide information about income and property, if this is required by law and resulted in loss of trust of the employer;
• committing an immoral offense if the work is related to the performance of educational functions;
• single gross violation of labor duties by the manager or his deputy;
• submission of false information and documents during employment.

Example. A single mother works as a cashier in a store and has a five-year-old child. She systematically took money from the cash register without returning it, thinking that no one knew about it. But the employer secretly installed CCTV cameras. After another shortage, I decided to look at the records and saw that the woman had been taking money from the cash register for several days in a row.

The manager called the employee for a conversation and demanded an explanatory note. It was not provided within two working days, and a corresponding report was drawn up. A complaint was filed with the police about the theft of money, and the employee’s guilt was proven. She was fired under clause 7, part 1 of Art. 81 Labor Code of the Russian Federation.

Unlawful dismissal - how to challenge and where to go

When you can't fire your sole breadwinner

It is impossible to dismiss the sole breadwinner in a family at the initiative of the employer if the employee:

1. Being laid off or not suited to the position held. They must offer him another place; he takes advantage.
2. Works in an organization where the owner has changed.
3. He is listed as a manager or chief accountant and makes an unreasonable decision.

Note: you can confirm your status as the sole breadwinner by submitting children's birth certificates, disability certificates, and information about your spouse's lack of work.

The biggest question people have is downsizing. Let's turn to Art. 179 and art. 180 of the Labor Code of the Russian Federation, which describes in detail what is guaranteed to the sole breadwinners.

Reduction of an employee with a child under 3 years of age

In Art. 179 of the Labor Code of the Russian Federation states that when reducing staff, the employer must give preference to an employee with higher labor productivity. If there are two employees with equal productivity in the same position, preference is given to the family one. For example, when he has at least two minor children or disabled family members whom he supports. Or the employee has no one in his family with independent income.

The employer in such a situation must leave the breadwinner in the position or transfer him to another, taking written consent.

Retrenchment of an employee with a child under 14 years of age

Everything is the same here: if there are several workers with the same productivity, preference is given to families with children.

Retrenchment of an employee who has a disabled parent

In Art. 179 of the Labor Code of the Russian Federation states that an employee who has disabled dependent family members is given a preferential right to remain in the event of a layoff. You can also transfer to another position with written consent.

Parents are family members, and persons with disability groups I, II or III are considered disabled. For example, if an employee lives with and supports his disabled mother, he will not be laid off.

Important! If an employee has both parents, and one of them is disabled, and he is simply helping them financially, he is not given a benefit when being laid off. In Art. 89 of the RF IC states that spouses are obliged to support each other. This means that maintenance obligations fall primarily on the able-bodied husband or wife.

Reduction of a mother of many children if her husband works

A mother with three or more born or adopted children is considered to have many children. You cannot terminate the contract with her if the family has a child under three years old or a disabled child under 18 years old, or a minor under 14 years old. Even if the husband works (Article 261 of the Labor Code of the Russian Federation).

When staffing is reduced, people with many children also enjoy preference to stay.

Dismissal to care for a sick family member

There is no such wording on dismissal in the Labor Code of the Russian Federation. You can resign only of your own free will if you have a close relative who needs to be looked after.

But there are sick days to care for children or relatives. To care for a child under 7 years old, 60 days are given, from 7 to 15 years old - up to 45 days a year. All this is paid for. You can take sick leave to care for your spouse, brother, sister or parent for up to 7 days. This period is paid, after 7 days you can take a vacation at your own expense. No more than 30 paid days of care are provided per year.

General design rules

Children belong to one of the socially vulnerable groups; for this reason, the state provides them with a number of additional guarantees. In the event of the loss of a support person, they are provided with additional assistance, including material assistance.

For housing and communal services

• state pension. It is most often appointed during the civil service of the deceased, if the breadwinner was a conscript, died as a result of a radiation or man-made disaster, or the consequences of liquidation, or was a tester, or while on duty working as an astronaut or was a candidate for cosmonaut;
• The insurance pension is paid in all other cases, but its size will directly depend on whether the person was employed and whether he contributed a certain amount to a pension fund. If this was not the case, then the pension will be social;
• social guarantees. This includes various benefits and privileges for persons who have lost their breadwinners. This type includes free travel or free treatment. A complete list of such concessions has been developed at the federal level, but there are also special privileges from the entity in which the dependents and breadwinner lived.

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A lot depends on what category the person who lost the breadwinner belongs to. For example, orphans or pensioners have additional guarantees depending on their social status. A list of all possible benefits, including regional ones, must be established individually at the social support service.

Step 2. The documents collected for registration of the pension are submitted along with the application to the Pension Fund. This can be done in person or through the fund portal. These documents are also accepted by the MFC. The preference registration service is provided free of charge.

Current legislation obliges officials to provide benefits to those who have lost a family breadwinner within the time limits established by regulations. Many people, after the death of a loved one, have little understanding of what and how to do. This leads to delays in filing documents for pension benefits. If they manage to do this within a year after the death of the breadwinner, then payments will begin from the date of the event.

Grounds for termination of preferences

The maximum tax base for deducting benefits for children is 350 thousand rubles per year. To obtain preferences, a common procedure has been established for all regions. The procedure involves submitting an application to the Federal Tax Service. It is drawn up in a standard form. Along with the application, the applicant must provide documents confirming the right to receive benefits:

If a child is being raised by a woman who has the status of a single mother, but the birth certificate confirms paternity, then the state provides a full package of survivor benefits for this child. The child also has the right to receive pensions and a number of benefits in the field of housing and communal services, use of public transport (trolleybus, bus, train), free medicines, and medical care.

• children under 18 years of age;
• children studying full-time in higher institutions up to 23 years of age;
• children with disabilities, congenital or acquired before the age of 18;
• spouses caring for children under 14 years of age;
• parents of retirement age, as well as if there is a disability;
• spouses, if they have reached retirement age.

State survivor's pension in 2021

If the recipient of a state pension in the event of the loss of a breadwinner is assigned other payments, such as insurance upon reaching retirement age, social benefits for disability, or employees for long service, the right to accrue two types of subsidies arises.

1. Monthly provision of special nutrition to pregnant women. The volume of special food products depending on the stage of pregnancy:
   1st trimester – 1.5 kg per month.
2. 2nd trimester – 1 kg per month.
3. 3rd trimester – 0.75 kg per month.
4. Monthly provision of special nutrition to nursing mothers. The volume of special food products depending on the age of the child:
   up to 4 months – 1.5 kg per month.
5. from 4 to 6 months. – 0.75 kg per month.
6. One-time compensation payment at the birth of a child 33,439
   – at the birth of the first child;
7. 44 588
   – at the birth of a second child;
8. 55 733
   - at the birth of the third and subsequent children.
9. A one-time compensation payment to women who gave birth to their first child between the ages of 20 and 24 inclusive during the period from January 1, 2021 – 56 031
   .
10. Annual compensation payment for a child under 18 years of age suffering from celiac disease who is not disabled – 12 279
    .
11. Monthly social payment to a student family – 3 957
    .

Labor rights of the sole breadwinner in the family

What is the sole breadwinner entitled to under the Labor Code of the Russian Federation:

1. Advantage when downsizing.
2. Dismissal is strictly in exceptional cases.
3. Parental leave for up to three years.
4. Providing four additional paid days off per month if there is a disabled child (Article 262 of the Labor Code of the Russian Federation).
5. A ban on hiring women with children under three years of age to work on weekends and holidays if this is contraindicated for them due to health reasons (Article 113 of the Labor Code of the Russian Federation). If there are no contraindications, work on such days can be carried out only with written consent.
6. Pregnant women should not be sent on business trips or employed at night. Overtime work for employees with children under three years of age is possible only with their written consent (Article 259 of the Labor Code of the Russian Federation).

To enjoy all the rights, it is better to immediately provide the employer with documents confirming your special position. For example, children's birth certificates, a certificate of registration of the spouse with the employment center.

What to do if the employer fired the only breadwinner

If an employer fires an employee with the status of the sole breadwinner in the family, there are two options:

1. Complain to the State Labor Safety Inspectorate.
2. Go to court.

Let's look at both methods in more detail.

Complaint to the labor inspectorate

If you simply need to hold the manager accountable for illegal dismissal, a complaint to the inspectorate is sufficient. You can submit it in person on paper or online using the “Online Inspection” service.

Employees will conduct an inspection and issue a decision on prosecution under Art. 5.27 Code of Administrative Offenses of the Russian Federation. If a pregnant woman or a woman with a child under three years of age is illegally dismissed, the case materials will be transferred to the prosecutor’s office, and then to the court for a verdict under Art. 145 of the Criminal Code of the Russian Federation.

Contents and sample of the complaint

The complaint must indicate:

• name, address of the inspection;
• Full name, employer position;
• Full name, address, telephone number of the applicant;
• periods of work in the organization;
• information about dependents;
• date and circumstances of dismissal;
• please check the stated facts;
• date of compilation and signature.

Documentation

When contacting the inspection you will need:

• passport;
• complaint;
• employment contract;
• employment history;
• a copy of the dismissal order;
• documents for dependents;
• other documents related to the case.

Note: upon termination of an employment contract, a copy of the order is issued upon written application from the employee.

Statement of claim to court

If you need to be reinstated in your position, you should file a claim with the district court at the employer’s location. You can also go to court at your residential address (Article 29 of the Code of Civil Procedure of the Russian Federation). The limitation period for disputes regarding dismissal is one month from the date of receipt of a copy of the order (Article 392 of the Labor Code of the Russian Federation). If it is missed, you will have to restore it.

How it all looks step by step:

1. Documents on the case are collected, a statement of claim is drawn up.
2. One copy of the application is sent by the plaintiff to the defendant.
3. Documents are submitted to the court.
4. The judge accepts the materials for production and schedules a hearing.
5. Based on the results of the proceedings, a decision is made. The judge must consider the case within one month (Article 154 of the Code of Civil Procedure of the Russian Federation).

The plaintiff needs to pick up the writ of execution and a copy of the decision. If the demands are satisfied, the employer is obliged to reinstate him in his previous position, pay all claimed compensation: for forced absence, compensation for moral damage, etc.

In order not to go to court again, you should use the State Automated System “Justice”. Through the service, you can upload the application and other documents online, but the hearings will be held in court.

Contents and sample of the statement of claim

The application is drawn up according to the rules of Art. 131 Code of Civil Procedure of the Russian Federation. It states:

• name and address of the court;
• Full name, address, telephone number of the plaintiff;
• name, address of the defendant organization, full name. manager;
• dates of employment and dismissal, position;
• information about dependents;
• references to laws according to which it is impossible to terminate the contract with the breadwinner;
• circumstances of dismissal;
• order details;
• documents confirming the status of the breadwinner;
• demands: reinstatement, compensation;
• date of compilation, signature;
• a list of submitted documents.

Documentation

When applying to court, the following must be submitted along with the application:

• passport;
• a copy of the dismissal order;
• children's birth certificates or documents for other dependents;
• certificate of disability, if dependent on a disabled person;
• employment contract.

This is the main list. Other documents related to the case may also be needed.

State duty

According to Art. 333.36 of the Labor Code of the Russian Federation, plaintiffs in labor disputes are exempt from paying state duty.

Arbitrage practice

People often go to court for illegal dismissal, being the only breadwinner in the family. They want to achieve reinstatement and recovery of compensation payments.

Here are some examples:

1. The woman was fired from her position as a system administrator. She has two children, 2 and 8 years old, and her employer knew about it. She asked the court to reinstate her at work, to recover compensation for moral damage - 200,000 rubles, as well as earnings for the period of forced absence. Decision No. 2-128/2019 2-128/2019(2-1471/2018;)~M-1374/2018 2-1471/2018 M-1374/2018 dated January 15, 2021 in case No. 2-128/2019 the requirements were partially satisfied. The court ordered the defendant to reinstate the plaintiff in her position and pay 5,000 rubles. as compensation for moral damage, and 13,544 rubles. for forced absence.
2. The woman has three dependent minor children; she was fired due to unsatisfactory test results. In court, she asked to recognize the order to terminate the contract as illegal, to oblige the defendant to correct the entry in the work book, to reinstate her at work, to recover compensation for moral damage, and to recognize the order to apply a disciplinary sanction as illegal. By decision No. 2-1301/2015 2-1301/2015~M-1187/2015 M-1187/2015 dated November 27, 2015 in case No. 2-1301/2015 the requirements were satisfied in full.
3. The father of many children and the only breadwinner in the family was fired during staff reduction. Through the court, he wanted to be reinstated in his position and recover from the employer compensation for moral damage and compensation for forced absence. By decision No. M-1576/2014 2-1836/2014 2-1836/2014~M-1576/2014 dated June 9, 2014, the claims were denied. The employer did not have suitable positions for the plaintiff, and the court declared the termination of the contract legal.

Who has the status of a father of many children?

Previously, the legislation of the Russian Federation had the status of a large family. Today, such a “united” concept no longer exists in many regions; there is a separate father with many children and a mother with many children. In 1992, by presidential decree, the status of parents with many children was determined according to the norms of each individual region. Typically, a parent with many children is one whose family has three or more children. In some regions, to obtain the status of having many children, you will need to raise at least five children.

It is worth taking into account the fact that only those children who live in the family will be taken into account. If, for example, a father has five children, but three of them will live with their mother, and he only pays alimony, then the status of a parent with many children is not given. But a mother who receives alimony will be given the status of having many children depending on the region.

There are also quite controversial situations when it is necessary to study in more detail the prescribed rules for obtaining benefits for large families in your region. To obtain status, you must contact the social protection authorities.

Lawyer's answers to private questions

Where can I get a certificate about the sole breadwinner in the family?

There is no such certificate. You can confirm that the second spouse does not work with a certificate from the Pension Fund about deductions to the personal account, a work record book, or a certificate of family composition. All documents must be issued in his name.

Is it possible to lay off the sole breadwinner in a family if there are no suitable positions?

Yes. Such an employee only enjoys the preferential right to remain. If there are no other positions in accordance with his qualifications or he has submitted a written refusal of the proposed vacancies, he can be fired.

Is it possible to fire the only breadwinner in a family if he works unofficially?

There is no employment contract, therefore, the employer will not comply with the legal dismissal procedure. You can prove the fact of work through the court and demand the conclusion of an employment contract, and only after that the provisions of Art. 261 Labor Code of the Russian Federation.

Can a single mother be fired if her small child is constantly sick and she has to take sick leave?

No. Sick leave in such situations is required by law. The employer does not have the right to terminate the contract for this reason alone.

Is it possible to lay off a minor child?

Yes, but only with the consent of the labor inspectorate and the commission for minors (Article 269 of the Labor Code of the Russian Federation). Such consent is not required if the organization or entrepreneur ceases operations.

Decor

Can a mother of many children be fired or laid off from work
? A survivor's pension is not automatically established only upon the fact of his death. To apply for benefits, a citizen who has the right to do so should contact the appropriate institution with an application.

Thus, for recipients of an insurance or social pension, such an institution is the state pension fund, since it is from its funds that it will be paid.

There is a separate treatment procedure for dependents of a deceased serviceman. They must submit an application to the department in which the deceased carried out official activities. For example, if the deceased was a police officer, then you should apply for the appointment of security to the Ministry of Internal Affairs. The pension for this category of persons will be paid from the federal budget.

Citizens must attach the following documents and their copies to the corresponding application in the established form:

1. identification document;
2. death certificate of a citizen;
3. documents confirming relationship;
4. work book of the deceased;
5. documents confirming the fact of being a dependent (for example, a certificate of family composition).

This list is basic; employees of the Pension Fund or other government agency may request other documents if necessary.

You can apply for payments at any time, starting from the date of death of the breadwinner.

Reference! If citizens apply for a pension after a certain time, then they have the right to receive money for the period that preceded the application, but it is limited only to the last 12 months.

You can apply for benefits either personally or through a representative. In the latter case, the authorized person must have a duly executed written power of attorney. In addition, it is possible to apply for a pension through multifunctional centers, as well as submit documents online through the State Services portal.

Receipt for a child

Due to obvious features, a young child cannot independently apply for survivor benefits. In this case, all the necessary procedures are carried out for him by his legal representative. This can be either the child's parent or his guardian.

In this case, an appeal to government authorities occurs on the same grounds and in the same manner as when an application is submitted by an adult citizen.

Separately, mention should be made of the peculiarities of receiving funds by an adult citizen who is a student of an educational institution. In this case, he independently provides a certificate issued at the place of study. If a student is expelled before he reaches the age of 23 or switches to distance learning, the payment of the pension is terminated.

In what case is re-registration necessary?

Current legislation establishes that payments for the loss of a breadwinner to children are made until they reach adulthood. However, there is an exception to this rule related to the establishment of support for persons studying full-time in certain educational institutions.

However, this fact needs confirmation, after which the pension will be reissued. In order to re-register, the student must provide the pension fund with a certificate from the educational institution and submit a corresponding application.

Restoration of payments

The law establishes situations when the payments in question may be suspended. In relation to provision for the loss of a breadwinner, the most common of them are the pensioner’s failure to receive money within six months, as well as the failure to submit to the pension fund information about full-time education of a person who has reached the age of 18 (remember that such information is submitted once a year).

Restoration occurs when the circumstances that led to the suspension of the transfer of money are eliminated and the Pension Fund is contacted on this issue. That is, for example, if a recipient of payments from among the students did not provide information about his studies, then he should contact the Pension Fund of the Russian Federation with the corresponding certificate from the educational institution, submitting an application for reinstatement.