Russian legislation, which contains labor law norms, does not allow termination, at the initiative of the employer, of labor relations with pregnant women, as well as with employees who, at the time of the decision to dismiss, are on maternity leave or to care for a child under three years of age.
The only exception to this rule is cases of liquidation of the enterprise. We will tell you in this article how to fire an employee on maternity leave.
Rules for terminating the contract
During the process of closing a company, the rights of a pregnant woman are no different from other employees. The Labor Code of the Russian Federation (clause 2, article 180) states that the company’s management has the right to terminate an agreement with a pregnant wife only subject to written notification of future dismissal. Warning about such an event must be received no later than 60 days (2 months) before liquidation.
The notification document is drawn up in 2 copies, one of which the employer keeps for himself, and the other gives to the pregnant employee. Information about future dismissal must be done in person and must be signed. If the manager notifies about the termination of the employment relationship orally, such an action has no legal force.
An employment agreement with a pregnant woman can be terminated only with her consent, which must be written. Duration - until the end of the period established by law. In such a situation, the employee will have to accrue additional payments equivalent to the average earnings for the time from the moment of dismissal until the day the company closes.
In the process of dismissing a pregnant woman, the management of the enterprise must rely on the Labor Code of the Russian Federation (Article 81, clause 1, part 1). At the same time, a dismissal order is issued to the company. It is with this that the employee must be familiarized with a signature. After submitting the application, the employee must receive (if there is a corresponding application):
- Salary certificate issued under 2-NDFL.
- A copy of the order on hiring to the company, on transfers to other positions, as well as on dismissal.
- Certificate of earnings. This document is subsequently used to accurately calculate payments of benefits for pregnancy (childbirth), as well as temporary disability, child care (for the age of up to 1.5 years), and so on.
- Payslips for the last period, which should also include the day of dismissal.
How are payments due?
One of the key points is payments to pregnant women upon liquidation of an enterprise. This question is most relevant, because finding a job during the period of bearing a child until going on maternity leave is a difficult task. The Labor Code of the Russian Federation (Article 140) states that all payments to employees must be made on the day when the employee is dismissed by order. A pregnant woman has the right to count on a number of payments:
- Salary for the period worked, as well as for the unpaid period, including the day of dismissal.
- Severance pay.
- Compensation payments for vacation that was not used.
If a pregnant woman considers the amount of payments due to be insufficient, she has the right to come to the head of the company and demand additional help necessary to overcome a difficult period. By the way, such payments are not mandatory, but the company can make an exception and help a pregnant employee. In this case, the amount of financial assistance will be determined personally by the head.
Making a decision to terminate the company's activities
The decision to close an organization is made by the board of the company, or the founder, if he is the only one. Such a decision can be made not only voluntarily, but also in court.
Reasons for liquidation of the enterprise:
- decided not to continue doing business;
- understood the unprofitability of the enterprise;
- hide violations of the law, etc.
The court forces the company to close due to repeated gross violations of the tax or civil law code. When such a decision is made by several founders, a general meeting is held, where minutes of the general meeting are drawn up with a unanimous decision on liquidation.
Subtleties and nuances of calculating payments
Contrary to popular belief, the salary of a pregnant employee is calculated according to the same principle as for other employees. In this case, the dismissed employee has the right to full repayment of salary debts for the previous period (if any).
An equally important point is compensation for vacation that was not used by the employee. Its calculation is carried out according to the algorithm described in the Labor Code of the Russian Federation (Article 133). If a pregnant woman worked up to 5.5 months in the year when the liquidation occurs, compensation is calculated at the rate of 2.33 days of vacation per month worked. If in the month when the liquidation takes place, the employee worked less than 15 days, this period is not taken into account. Otherwise, the company must compensate for the vacation for another 2.33 days. If a pregnant woman worked from 5.5 to 11 months, then the calculation is made for the entire vacation.
When calculating severance pay, the managers of the liquidated company must also take into account the Labor Code of the Russian Federation (Article 178). The calculation is based on the employee’s average daily earnings. At the same time, the manager’s responsibilities include paying the pregnant woman compensation for the month (taking into account the average). The calculation process takes into account the year that preceded the year the company closed.
The use of other periods is possible in the case when a pregnant woman has worked for the company for less than a year or quits in the month in which she was employed.
To calculate the average salary, data for the previous year (12 months) is used, after which the resulting number is divided by the number of actual returns to work for this period. Various compensations and benefits are removed from the amount received. As for the size of the latter, the calculation is made as follows: the average salary per working day is multiplied by the number of trips to work during the billing period. Therefore, the benefit on different days may be different.
It is believed that after the termination of the organization's activities, all its employees begin to look for new jobs. To help them during the search for a new position, employees receive an average salary for two months. Women who register with the employment service within 2 weeks (14 days) can count on payments. If the organization’s employees were unable to find a job for a pregnant woman, her average salary may remain for 3 months after dismissal.
Responsibility of the employer for the illegal dismissal of an employee in the situation
The rights of the expectant mother in the sphere of labor are protected by the Labor, Administrative, Civil and Criminal Codes of Russia, as well as a number of other legislative acts. Thus, dishonesty of employers is punishable under Art. 5.27 of the Administrative Code by imposing administrative fines: from 30 to 50 thousand rubles for legal entities and from 1 to 5 thousand rubles for officials (manager, chief accountant, personnel officer). Also, the unlawful dismissal of an employee who is expecting a child falls under Art. 145 of the Criminal Code of the Russian Federation, which provides for a fine of up to 200 thousand rubles. or the salary of the perpetrator for a period of up to 18 months or up to 360 hours of compulsory work.
Author of the article: Irina Smirnova
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Help for pregnant women who already have children
In the event of dismissal due to liquidation, a pregnant woman has the right to count on payments due to her within the limits of social assistance.
Here it is worth focusing on the resolution No. 865 (clauses 11 and 12), which stipulates that the payment of maternity and pregnancy benefits is the task of the social security department at the woman’s place of residence. To receive such a payment, you must contact a special service and present the following package of papers:
- An application in which a pregnant woman requests maternity and pregnancy benefits.
- Certificate of incapacity for work.
- A certificate taken from the Employment Service confirming the absence of work.
- An extract from the work record book certified by a notary. It should contain information about your last place of employment.
In addition, a pregnant woman has the right to count on benefits, which are intended when registering with a doctor (typical for the first few months after conception).
After the birth of a child, a woman becomes entitled to a lump sum benefit. As soon as the period specified in the work ability certificate expires, you can go on maternity leave or contact the Social Insurance Fund, register as unemployed, and then start resolving issues with your employment. Each case has its own characteristics. In the first situation, social protection authorities deal with payment benefits until the child turns 1.5 years old. In the second case, the benefit is paid until the mother manages to find a job. In this case, the employment service takes on the financial burden.
Features of dismissal when closing a branch
The Labor Code of the Russian Federation (Article 81) states that in the event of termination of the activities of a company division located in another region, the process of dismissal of pregnant employees occurs according to the same algorithm as in the main department. It turns out that everyone will be laid off, including female workers who are in an “interesting” position.
If the main office liquidates its division, but at the same time opens a new branch in this region, management does not have the right to dismiss pregnant employees. They are obliged to transfer the woman to a new place while maintaining her previous position. If there is none, the work that is in the staffing table should be provided.
During the period of pregnancy, it is recommended to closely monitor the company’s activities and identify regions where reductions are taking place. Such knowledge will help protect rights in the event of unlawful actions on the part of the manager. If an employer plans to reduce the number of employees, pregnant women should not be included in this number, because they are classified as untouchable.
If an employee at the stage of bearing a child has a certificate from the antenatal clinic, it is impossible to fire her. In practice, some workers are forced to write resignation letters of their own free will. In such a situation, a transfer to another position is formalized. At the same time, the level of wages may be lower due to the fact that management is not concerned about the well-being of their employees.
Reasons for liquidation of the enterprise
The issue of liquidation can be raised both by the founders of the enterprise and by the controlling government bodies at the place of registration or business. That is, liquidation occurs either voluntarily or compulsorily. It is also possible for an enterprise to cease its activities during the bankruptcy process.
The reason for the forced liquidation of an enterprise is most often a systematic violation of the law. It occurs by a court decision, which is addressed by a government agency, whose representatives consider the violations to be sufficient to formalize the termination of the legal entity’s activities. In addition, there are special grounds - for example, exceeding the permissible number of company participants.
Liquidation by decision of the founders is carried out due to various circumstances. It may happen that the founders of the enterprise simply believe that the company has completely fulfilled its objectives. However, most often this happens due to financial problems. The initiative can come from both the center and their branches of the enterprise.
Features of a fixed-term employment contract
If a woman signed a fixed-term employment contract with the company, and then became pregnant or learned about her situation, the manager must extend the term of the agreement until the end of the pregnancy. In this case, the employee must give her consent and bring a certificate from the antenatal clinic. It is impossible to dismiss such an employee without extending the agreement. In this case, a woman must provide her employer with a document confirming the presence of pregnancy no more than once every three months. If the employee continues to work after the end of her pregnancy, the employer has the right to fire her and not make any payments.
