A difficult situation with the dismissal of an employee on parental leave.

When is it possible to dismiss an employee on parental leave?

The employer cannot initiate the dismissal of such an employee (Part 6, Article 81 of the Labor Code of the Russian Federation). However, there are other acceptable ways in which you are allowed to break off relations with him:

• the term of the fixed-term employment contract has expired if there are no vacancies (Part 1 of Article 79 of the Labor Code of the Russian Federation);
• the desire of the employee himself (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).
• termination of labor relations by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);
• liquidation of an enterprise (clause 3 of Article 261 of the Labor Code of the Russian Federation).

What information should be in the notice?

The following information must be included in the document:

1. The name of the territorial body of the Social Insurance Fund of the Russian Federation.
2. Name of the organization, individual entrepreneur that notifies the fund.
3. Registration number, subordination code.
4. TIN/KPP of the organization.
5. Reasons for termination of benefits. Here you need to check the appropriate box.
6. Information about the benefit recipient. This is the employee’s full name, date of birth, passport details, SNILS number, INN, information about the place of registration, other information (the day the vacation ends, details of the order to terminate the employment relationship). You can specify the details of a temporary identity card or other document. For foreign workers, indicate the details of a residence permit or temporary residence permit.
7. Position, full name and signature of the representative of the organization who sent this document to the FSS.
8. Organization phone number, email address.

After receiving the document, the FSS employee puts his signature and date on it.

How to fire a maternity leaver by agreement of the parties

For employers, this is often the only possible option to terminate the employment relationship with an employee on maternity leave.
Dismissal is formalized under clause 1 of Art. 77 Labor Code of the Russian Federation. No processing is required. The dismissal procedure can be divided into several stages:

• One of the parties decides to terminate the employment contract. If the initiative comes from the employer, he sends the employee a notice in any form, which indicates all the conditions for dismissal.
• Negotiations are held at which the parties agree on all terms of termination.
• An agreement between the parties is drawn up in two copies. The document spells out all the points that were agreed upon.
• The employee responsible for personnel records issues an order to terminate the employment contract.
• On the day specified in the agreement, all necessary payments are made (for unused vacation, compensation and other “severance” payments).
• Fill out a work book with the wording: “The employment contract is terminated (terminated) by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.”

What payments is she entitled to?

Upon dismissal of his own free will, a parent on maternity leave receives compensation for all days of unused leave accumulated during the period of work under Article 127 of the Labor Code, Part 1.

Compensation is accrued only for days worked before maternity leave. No compensation is accrued for days on maternity leave; this should be taken into account when calculating payments.

For details on what compensation is due upon dismissal if the employee was on maternity leave and how to calculate the amount of payment, read our material.

Dismissal during maternity leave at your own request

Employees on maternity leave rarely express a desire to sever their employment relationship. In this case, the dismissal process is no different from the usual:

• The employee writes a statement asking to be dismissed at his own request.
• The application is registered as internal correspondence.
• The director signs the document and sends it to the personnel service or the person responsible for personnel records management.
• The personnel officer issues a work book to the dismissed person with a note on termination of the employment contract. Compensation for unused vacation is paid on the day of dismissal.

Every employee who goes on maternity leave is retained a job (Article 256 of the Labor Code of the Russian Federation).

After the dismissal of such an employee, the employer usually does not look for a new applicant, but employs an employee who temporarily performed the duties of a maternity leave (if he is completely satisfied with the employer).

Who pays the benefit?

When an employment contract is terminated by a person on maternity leave, the organization is no longer obliged to pay benefits, so this function is transferred to social services.

If the termination occurred by agreement of the parties, in connection with the closure of the enterprise or its relocation, that is, on the initiative of the employer and the consent of the employee, then the employer is obliged to pay maternity benefits until the end of the maternity leave period. Therefore, before deciding to quit during maternity leave, study this issue well so as not to get into trouble.

End of a fixed-term contract for an employee on parental leave

An employee working under a fixed-term contract can also go on maternity leave. However, the employer does not have the right to terminate a fixed-term contract during parental leave.

You cannot say goodbye to an employee on vacation (any), even if a fixed-term contract or an employment contract was concluded with him during the absence of another employee. The contract is extended until the date of release from vacation (paragraph 2 of article 261 of the Labor Code of the Russian Federation).

If an employee goes on maternity leave from the rate of any absent employee (vacation, long business trip, maternity leave), then the employer must transfer her to another position that is vacant at that time and corresponds to her qualifications. When the contract expires and there are no suitable vacancies, the woman may be dismissed.

If the dismissal occurs immediately after maternity leave?

To do this, the employee needs to submit an application for release from her position 2 weeks before the end of the maternity leave. The last day of maternity leave must be indicated as the last day of work. If a voluntary dismissal is made after maternity leave, on the last day the manager must pay the employee off and issue a book. The employee is also given the necessary certificates and documents related to her work activities at the enterprise. There is no need to work out anything, and the application and departure from the company will be completed in one day.

Dismissal of an employee on parental leave during liquidation of an enterprise

Liquidation of an organization is a long process. The employer must terminate the employment contracts of all employees. The procedure for dismissing employees on maternity leave can be divided into several stages:

• Notifying the employee 2 months before the date of dismissal against signature. If it is not possible to meet in person, a registered letter with a receipt stamp is sent to the employee’s address.
• At the end of the two-month period, a dismissal order is created and a work book is filled out.
• They pay compensation for unused vacation, severance pay (for one month), and average monthly earnings while looking for a new job.

If an employee is entitled to benefits, she will be able to receive them from the social security agency.

Responsibility of the employer when dismissing an employee on parental leave

An employee dismissed from parental leave at the initiative of the employer, except for the cases described in clauses 1, 5-8, 10, 11 of Part 1 of Art.
81 of the Labor Code of the Russian Federation, has every reason to appeal to the judicial authorities. If the court satisfies the employee’s demands, the employer is obliged to:

• reinstate him in the same position;
• pay the employee compensation for days of forced downtime;
• pay for material damage.

In addition, the court may hold the employer administratively liable under paragraph 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation and impose fines:

• from 2 to 5 thousand rubles for an official;
• from 50 to 80 thousand rubles for an organization.

Information about any violations is transmitted to the labor inspectorate, so there is a high probability of unscheduled inspections of the enterprise. At the same time, inspectors will check not only data on maternity leavers.

Let's sum it up

• Women with children under 3 years of age are considered the most protected by law
• An employer cannot fire an employee on maternity leave on his own initiative.
• The only available option for a “quick” dismissal is to come to an agreement with her.

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How to do it?

To resign during maternity leave without any problems, you must follow the steps below:

1. Draw up an application addressed to the head of the company (enterprise) in a standard form. A sample of this document must be found on the Internet or you can obtain the appropriate form from the HR department of the enterprise.
2. Submit your application to your supervisor.
3. On the day of dismissal, recorded in the application, receive a work book and due payments.

In order for the resignation letter to enter into legal force, it must be officially registered in the secretariat, accounting department or office of the enterprise.

A dismissed (or already dismissed) employee also has the right to ask to be given all the necessary documentation, in addition to the work book. These documents can be different:

• forms;
• extracts;
• certificates;
• orders, etc.

An application for dismissal can be submitted by mail or in person (when reporting to work).

If an employee is on maternity leave, his dismissal is carried out in a similar manner (Article 80 of the Labor Code of the Russian Federation). Moreover, dismissal can be carried out in connection with the transfer of such an employee to another organization (clause 5 of Article 77 of the Labor Code of the Russian Federation) or by appropriate agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

What documents are needed?

Based on Art. 80 of the Labor Code of the Russian Federation, in case of leaving his current place of work, an employee on maternity leave sends a separate written statement to his management (director of the enterprise, company). Such a document is drawn up in free form. any separate requirements for filing an application for dismissal.

However, according to general practice, the following mandatory details must be reflected in the resignation letter:

1. addressee - head of the company (enterprise);
2. Full name and position of the applicant;
3. the title of the document is “Application”;
4. a request to resign from your current job at your own request;
5. date of cancellation of the employment contract (agreement);
6. date of document preparation;
7. document registration number - placed in the HR department;
8. personal signature of the applicant;
9. personal signature of the executor of the document (placed on the visa copy of the application).

The resignation letter is drawn up in 2 copies. Moreover, one of them remains with the employer, and the second - with the resigning employee.

On the day of dismissal, the personnel officer issues the employee a work book. At the same time, the accounting department of the enterprise pays the dismissed employee all required benefits and payments (Article 140 of the Labor Code of the Russian Federation).

Article 140 of the Labor Code of the Russian Federation. Payment terms upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

How to file correctly, can a maternity leave without working?

In accordance with Art. 80 of the Labor Code of the Russian Federation, in case of leaving his current place of work on his own initiative, an employee on maternity leave submits a corresponding application to his head of the company (enterprise) 2 weeks before the day of dismissal. However, this can be done earlier, and in some cases, immediately on the day of dismissal.

Dismissal of an employee on maternity leave without a two-week period of service is possible in the following situations:

• If there is a separate clause in the employment contract (agreement), that when drawing up the corresponding application, the official date of dismissal will be considered the day of drawing up such a document.
• If in the agreement of the parties, concluded in accordance with Art. 78 of the Labor Code of the Russian Federation, a separate clause is recorded that in case of dismissal on personal initiative, the employee will not need to remain at his previous job for another 2 weeks.
• If it is not possible to go to work (in case of admission to a college (university), when moving to another city, etc.). Then the employee’s dismissal is carried out on the day recorded in the corresponding application (Article 80 of the Labor Code of the Russian Federation).

The head of a company (enterprise) does not need 14 days to find a new employee. After all, the duties of a dismissed person are performed by another employee working under an employment contract (Article 59 of the Labor Code of the Russian Federation), or are evenly distributed among other employees of a specific department (unit).

Time spent on annual leave or time on sick leave is also counted towards the two-week working period.

The rules and procedure for dismissal during parental leave up to 3 years and after it are described here.