Can the only breadwinner in a family be fired? It would seem that the answer is obvious. The legislation should contain a direct ban on the dismissal of employees who are responsible for providing for all family members. However, in reality everything is not so simple. And not every employee who solely supports his children and spouse can receive privileges in the event of layoffs or dismissal on other grounds.
This article will discuss in detail under what circumstances an employee who is the sole breadwinner in his family can be dismissed, and under what circumstances his dismissal will be unlawful. Who generally belongs to this category of workers? And how to protect your rights if they are violated by management?
The only breadwinner. Who is he?
Employees who single-handedly provide for their family members have an advantage over other employees when they are dismissed due to layoffs, as well as on some other grounds provided for by the Labor Code of the Russian Federation. Article 261 of the Labor Code of the Russian Federation clearly defines who can be classified as these persons.
These include employees who are not officially married and have small children or disabled children, as well as employees whose legal spouse is not officially employed, due to which they are forced to provide for such children alone.
In certain cases, this category of workers may include not only parents, but also grandparents, older brothers, sisters, and other relatives who are forced to provide for children of a certain category without outside help. They can also be legal representatives, for example, guardians.
Situations in which the dismissal of a person solely providing for a family becomes possible
Despite the protection of breadwinners from dismissal on general grounds, in certain situations termination of an employment agreement is permitted. The legislation includes such cases:
- Liquidation of the organization. If an enterprise is forced to cease operations, then the persons working there are fired. At the same time, citizens forced to leave their positions receive monetary compensation.
- Reduction. Despite the fact that sole breadwinners, parents with many children and persons raising children, including disabled people, are protected from layoffs at the legislative level, the Labor Code of the Russian Federation still contains a reservation. Thus, a person’s qualifications should not be lower than those of other specialists employed in the organization (Article 179 of the Labor Code). If this rule is not followed, dismissal becomes a reality.
- Employer's decision. An enterprise has the right to formulate an order according to which the contract with the sole breadwinner is terminated unilaterally. However, such a decision requires compelling reasons. It is worth recognizing that the dismissal of an employee belonging to a preferential category of citizens is the most difficult procedure, from a legal point of view. The list of grounds on which dismissal can be made is defined in the Labor Code of the Russian Federation (Article 261 of the Labor Code of the Russian Federation). The provisions of this article contain references to clauses , - , , 11, part 1, art. 81, paragraph 2 of Art. 336 TK.
- Expiration of the employment contract. In this case, the employer is not obliged to renew the relationship with the employee.
- Circumstances beyond the control of the parties. The specified basis is named in Art. 83 Labor Code of the Russian Federation. The article contains a list of grounds on which an employment agreement can be terminated by an employer. For example, if a driver loses his driver’s license in his free time, he will no longer be able to perform the duties assigned to him by the organization. However, at the same time Art. 83 contains an important caveat. Thus, dismissal is allowed only if there are no positions to which a person can be transferred (if he agrees) and if he has the appropriate skills.
Termination of an employment agreement at the initiative of the employer: possible reasons
As noted above, current legal acts provide a complete list of grounds on which the breadwinner can resign at the initiative of the employer. These include:
- The presence of a disciplinary sanction against a citizen and subsequent repeated violation of labor duties.
- Commitment of actions by a person employed in a position servicing monetary (commodity) assets that resulted in negative consequences for the employer or loss of confidence in the employee.
- Failure by a citizen to take measures to prevent a conflict of interest or resolve it, if he is a participant in one, as well as other actions (inaction) related to anti-corruption requirements.
- Commitment of offenses related to immoral behavior by persons engaged in teaching activities.
- Submission by the employer of knowingly false documents when drawing up and signing an employment agreement;
- Single failure to comply with duties associated with:
- truancy. In this case, the person must miss the entire working day (shift) without a good reason or be absent from the workplace for more than 4 hours in a row;
- a citizen being at work or on the employer’s premises in a state of alcoholic (drug, toxic) intoxication;
- disclosure of information protected by law (official, state, financial activities of the company, personal data of employees) received by an employee as part of his work activity;
- committing theft at the place of work, regardless of the severity of the act, embezzlement, destruction, or damage to the organization’s property. The specified offenses (crimes) must be confirmed by a court verdict (decision) that has entered into legal force;
- violation of labor protection requirements, resulting in serious negative consequences (injury, accident, death, catastrophe, etc.) or posing a threat to the occurrence of such consequences.
Expert commentary
Gorbunova Olga
Lawyer
Article 336, in turn, reflects the impossibility of maintaining a job for a benefit-teacher if he used educational methods that resulted in physical and (or) psychological suffering of a minor.
It is important to understand that any of the above offenses must be documented by the employer. Otherwise, the decision to dismiss can be easily challenged in court, by contacting the labor inspectorate or the prosecutor's office.
Does the husband have privileges if the wife is on maternity leave?
In itself, the presence of a legal spouse on maternity leave does not in any way affect the dismissal of an employee if circumstances arise as provided for by the Labor Code of the Russian Federation. While on such leave, a woman maintains an employment relationship with her employer. And the Labor Code of the Russian Federation determines that in order for an employee to have privileges, his spouse must be unemployed.
Natalia
Labor expert
At the same time, the spouse herself has the right to count on keeping her job, since according to the law, the employer does not have the right to deprive pregnant women of work, as well as employees with small children under 3 years of age.
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.
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Does an employer have the right to reduce wages?
Can they fire me if my wife doesn't work?
An employee cannot be fired if, although he is in a registered marriage, his wife does not officially work anywhere, and the family has three small children, one of whom is:
- Disabled person under 18 years of age;
- Minors under 3 years old.
In such circumstances, all facts giving the employee guarantees must be confirmed by the necessary documents, including:
- A certificate from the employment center stating that the employee’s spouse is unemployed;
- Children's birth certificate;
- A certificate confirming the assignment of a child with a disability to a specific group.
How to take advantage of these legal provisions?
If layoffs are planned at your company, it is advisable to promptly provide the HR department with a certificate of family composition.
The commission, which will decide who to lay off first, must take this information into account. The choice between two employees of the same qualifications, one of whom has no family responsibilities, and the other is obliged to support the family, must be made in favor of the family man and the sole breadwinner. However, qualifications and productivity are still of paramount importance when downsizing.
- If the enterprise is liquidated, all employees are fired; the position of the sole breadwinner in this case does not change anything. If you are included in the list during partial redundancy, you have the right to claim.
- Protocol of the commission that made the decision to refer to the provisions of the law and appeal it.
- Your disagreement with the reduction must be stated in writing prior to dismissal.
- Write a statement addressed to the manager. They may not want to accept it and register it with the secretariat or the human resources department (registration must be monitored, it is mandatory, a second copy with the date of registration must be in your hands).
If you refuse, don't give up and try other options.
This can be a registered letter (with a description of the attachment and a receipt), as well as a fax sent from the post office to the official email address. You can also use courier services.
It is possible that the commission’s decision will be adjusted after the employer is convinced that you know the law and are ready to act. The next authorities are the State Labor Inspectorate and the court (the period for applying to the court is limited - no later than a month , counting from the day when you were familiarized with the dismissal order against signature and issued a work book).
Dismissal of a single parent with a disabled child or a child under 14 years of age
It is impossible to fire a single parent who is supporting a child under 14 years of age or a disabled person under 18 years of age. Such dismissal can be challenged in court, with the employee reinstated at work and other ensuing consequences.
The status of a single parent must be documented.
Such documents include:
- A certificate from the registry office stating that the citizen is not married;
- Certificate of the child, in which there is a “dash” in the “father” column;
- A court decision to deprive a mother or father of parental rights;
- Death certificate of the child's mother;
- Other documents confirming that the child is being raised by the employee alone.
Special conditions for terminating the contract at will
Sometimes a man who is the sole breadwinner in the family may want to leave his job voluntarily. The legislation does not have any obstacles to this; moreover, such citizens have the possibility of dismissal without 2 weeks of service. This can be achieved in several ways:
- explaining the situation to the employer and reaching an agreement with him;
- provide objective reasons for immediate dismissal (for example, a man needs to care for a sick child, which makes further activities impossible).
Some employers may also encourage employees to leave voluntarily. Threats in this case are illegal. It is better to try to resolve the issue with the employee peacefully - for example, offering additional monetary compensation or assistance in finding a new job.
In what situations is dismissal legal?
Despite the existence of extenuating circumstances specified in the law, single breadwinners can still be fired if one of the following grounds exists:
- liquidation (termination of activities) of the employer;
- failure to fulfill the duties of an employee if a disciplinary sanction was previously applied to him;
- gross violation by an employee of his obligations (for example, absenteeism);
- loss of management trust;
- committing an immoral offense;
- violation of obligations by the head of the organization;
- submission of false documents when applying for a job;
- the use of violence against the personality of a student or pupil.
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