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The main employee went on maternity leave for 3 years, and a temporary employee was hired in his place until the main employee returned from maternity leave. Now, 3 years are coming to an end and the main employee wants, after their end, to take a vacation at his own expense until he receives a ticket to kindergarten.
Question :
How can I register a temporary employee for this period who is on the main payroll? There are no other free bets.
Lawyer's answer
The dismissal of a temporary employee, if the absent main employee immediately after maternity leave took leave without pay, depends, in our opinion, on the wording of the condition on the expiration of the employment contract.
If the employment contract of a temporary worker used the wording “Until a temporarily absent employee on parental leave returns to work,” then dismissal due to the expiration of the employment contract before the end of the leave without pay is impossible, since the main employee didn't start work. Therefore, the employer should dismiss the temporary employee after the main employee returns from leave without pay.
If the employment contract used the wording “Until the temporarily absent employee returns to work from parental leave” or “Until the end of the temporarily absent employee’s parental leave,” then the temporary employee should be fired on the day of the specified event.
According to Part 1 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded for the duration of the duties of an absent employee, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract, retains his place of work.
In accordance with clause 2, part 1, art. 77 of the Labor Code of the Russian Federation, the basis for termination of an employment contract is, among other things, the expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), except for cases where the labor relationship actually continues and neither party has demanded its termination.
In this case, the end of the employment contract can be determined by a specific date or the occurrence of a certain event (Article 79 of the Labor Code of the Russian Federation).
In accordance with 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 this employee returns to work. Consequently, the moment of expiration of a given employment contract can be determined in it only by indicating an event such as the absence of an absent person returning to work.
It should be noted that the issue of the day of dismissal in such cases is controversial, since there are two positions.
Supporters of one position, including Rostrud, are of the opinion that the day of dismissal will be the last working day preceding the day the main employee goes to work (Letter of Rostrud dated October 31, 2007 N 4413-6). Consequently, a fixed-term employment contract concluded for the duration of the duties of an absent employee terminates on the eve of the day such an employee returns to work (Appeal rulings of the Chelyabinsk Regional Court dated July 17, 2014 in case No. 11-6967/2014, Moscow City Court dated August 22, 2014 in case No. 33-32255/14, Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated April 17, 2012 No. 33-1674/2012).
Supporters of the second position point out that the last day of the employment contract and the day of dismissal should be the day the main employee goes to work (Appeal rulings of the Supreme Court of the Karachay-Cherkess Republic dated July 1, 2015 in case No. 33-456/2015, Altai Regional Court dated 05/29/2013 in case No. 33-4093/13, Stavropol Regional Court dated 05/07/2013 in case No. 33-2268/2013).
In our opinion, the dismissal of a temporary employee, if the absent main employee immediately after parental leave took leave without pay, depends on the wording of the condition on the expiration of the employment contract.
If the employment contract of a temporary employee used the wording “Until a temporarily absent employee on parental leave returns to work,” then dismissal due to the expiration of the employment contract before the end of the leave without pay is impossible, since the main employee didn't start work. Therefore, the employer should dismiss the temporary employee after the main employee returns from leave without pay.
If the employment contract used the wording “Until the temporarily absent employee returns from parental leave” or “Until the end of the temporarily absent employee’s parental leave,” then the temporary employee should be fired on the day of the specified event.
{Question: ...When must an employer fire a temporary employee if the main employee immediately after maternity leave took leave without pay? (Expert Consultation, 2016) {ConsultantPlus}}
Thus, if, in accordance with the wording of the terms of the expiration of the employment contract, the dismissal of a temporary employee occurs on the day the absent employee returns from parental leave, then it will be possible to conclude another fixed-term employment contract with the temporary employee for the period of leave without maintaining the main salary employee.
Selection of documents:
Question: ...An employee’s maternity leave ends before she reaches the age of 3 years. She asks that she be given unpaid leave for another 4 months so as not to have to go to work immediately after her maternity leave. How to arrange it correctly? Is it necessary to draw up an additional agreement for an employee who works temporarily? The agreement states: “2.1. This employment contract was concluded in accordance with Part 1 of Article 59 of the Labor Code of the Russian Federation for the duration of the duties of an absent employee, who, in accordance with labor legislation, retains his place of work - chief accountant XXX. 2.2. The employee is obliged to start work “xx” xxxxxx 20xx 2.3. Work completion date: Chief Accountant XXX starts work.” (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}
Question: An employee is on leave without pay. Another employee was hired in his place under a fixed-term employment contract until the absent employee returned to work. The fixed-term employment contract was drawn up without specifying an exact end date, and its termination was related to an event—the resignation of the replaced employee. The absent employee returned to work earlier than the agreed upon date in agreement with the employer. Is this grounds for terminating a fixed-term employment contract with a replacement employee? (Expert Consultation, 2013) {ConsultantPlus}
Question: The main employee is on leave without pay from July 1 to December 31. Is it legal to conclude a fixed-term employment contract with an employee for the duration of the duties of the absent main employee, if the expiration date of this contract is October 31? (Expert Consultation, 2015) {ConsultantPlus}
The explanation was given by Igor Borisovich Makshakov, legal consultant of LLC NTVP Kedr-Consultant, June 2019.
When preparing the answer, SPS ConsultantPlus was used.
This consultation has passed quality control:
Reviewer: Nadezhda Pavlovna Shaikhutinova, Candidate of Legal Sciences, Associate Professor of the Department of Labor Law and Fundamentals of Law, Udmurt State University
What it is?
There are situations when, when applying for a job, the head of the company informs the candidate that the position is maternity leave.
The main employee went on maternity leave and plans to return to her previous position at the end of this period. Not all citizens know what the maternity rate means. This definition should be understood as working at a temporarily free rate during the entire period while the main employee is at home with a small child.
The period of incapacity for work due to pregnancy and childbirth (BiR), according to Article No. 255 of the Labor Code of Russia, lasts at least 140 days. In the case of complicated births or multiple pregnancies, it will be longer. As a rule, a period of time off from work to care for a child immediately follows the labor leave. It can last 1.5 or 3 years.
In modern labor legislation there is no concept of “maternity pay”. It existed during the USSR period, but today it can also be heard often.
Payment of maternity leave for a part-time woman
What are the stages of processing maternity benefits for a part-time woman:
- register for pregnancy;
- request sick leave from the clinic and provide it to the employer;
- write a vacation application;
- The organization calculates maternity benefits based on earnings data for the last 2 calendar years before going on maternity leave.
The size of the payment depends on the woman’s average income, as well as on the time she worked in the organization.
A woman has the right to receive maternity pay from only one employer.
Probation
A probationary period (Article 70 of the Labor Code of the Russian Federation) is a period of time established by an employment contract during which the employer evaluates the employee’s business qualities and has the right to dismiss him if the employee does not pass the test. According to Article 70 of the Labor Code of the Russian Federation :
- if the contract is concluded for a period of up to 2 months, a trial period is not established;
- when imprisoned for a period of 2 to 6 months, the probationary period cannot exceed two weeks.
Legislative framework
Employment rules, rights and obligations of the parties to an employment contract are regulated by the Labor Code of the Russian Federation.
Temporary workers are those employees who are hired for the period of absence of the main worker or to perform certain work.
The basic rules for hiring and hiring a temporary worker are the same as for main employees. The applicant provides the same package of documents. However, when concluding an employment contract with a temporary employee, there are some peculiarities. Additionally, the Labor Code establishes special benefits and guarantees for them.
How to write in a work book
The registration is made exactly the same as for regular employment. The basis for making an entry in the work book is an employment order, which already contains a record of temporary duties. It is not necessary to indicate in the employment contract that the contract is fixed-term and has an end date, since later this agreement may become permanent.
For example, the main employee decided to quit without waiting for the end of maternity leave. And on the basis of Art. 58 of the Labor Code of the Russian Federation, a temporary worker becomes permanent, unless other circumstances arise. If the entry about the end of the employment relationship is erroneously entered in the work book, it should be corrected in accordance with the requirements of the instructions for maintaining books.
Is the monthly benefit still available?
If a woman decides to start working full time, she will no longer receive monthly payments from the state. This is the only restriction prescribed by law. This means that a woman has the right to go to work part-time, there are no obstacles from the law. At the same time, she retains the child care allowance. You can get a part-time job in any organization. That is, you can work not only for the employer from whom the woman went on maternity leave, but in general for any other company as an external part-time worker.
FEATURES OF WRITING AND COMPOSITION OF AN APPLICATION WHEN EMPLOYING DURING MATERNITY LEAVE
The personnel officer applying for a job must ensure that all documents are provided and that the employment application is filled out correctly under these conditions.
When writing an application, the following basic structure is traditionally used:
- The header of the document, containing information about the organization, its management and information about the potential employee;
- The main text is a request for employment;
- Date and signature of the person applying for this position.
The HR department employee must also take into account that when writing this type of document, the potential employee must indicate the full name of the desired position and the details of the employee who has gone on maternity leave, whose position you are going to occupy. It also makes sense to indicate the period of time of the concluded employment relationship, but it is not recommended to indicate the exact date of return of the main employee.
