Dismissal of a father of many children due to layoffs and the initiative of the employer

The legal aspects of labor legislation are not always followed as expected. But this is not a reason not to defend them. Mothers with children have previously been more or less protected in labor relations from the arbitrariness of their superiors and unlawful actions. Later, the concept appeared - a parent with many children, it can be either a mother or a father. Nowadays, the dismissal of a father with many children, including due to layoffs, occurs with an eye on his status, especially if he is the only breadwinner, even in a full family. Let's consider in what cases a parent with many children can be laid off, in what cases it is absolutely impossible to fire, whether work is required and cases from judicial practice.

At your own request

A father who has 3 or more children + they are minors is recognized as having many children.
The criterion applies to most regions of the Russian Federation, there are exceptions. It is better to check in a specific region. The status of having many children is documented; more details on the procedure are provided in a separate article. It is advisable to record the status of “father of many children” when applying for a job, fill out the documents, and submit them to the HR department. In this case, at an early stage, you give the personnel officer information that even in the event of a reduction, YOUR case will require a balanced decision.

The preferential position must be used, especially since it is enshrined in law.

The voluntary dismissal of a father of many children does not differ in the structure of actions from the dismissal of any other employee in accordance with the Labor Code of the Russian Federation. The person himself chooses and expresses his desire to leave his job. One only has to distinguish between the truly self-proclaimed will of an employee and coercion to resign through various types of pressure.

The employee writes an application, submits it to the personnel department, it goes through all the signature authorities, and passes the bypass sheet. An order is issued, the person being dismissed reads the document, receives a paycheck and a work book.

Find out important things: When you quit, they don’t give you your work book or pay slip: where to apply?

Legislative regulation

Since 2011, separate concepts – mother and father with many children – do not exist. The legislation uses a single term “parent”. Accordingly, the same norms of the Labor Code of the Russian Federation and special legal acts are applied.

In 2012, the State Duma adopted amendments to Article 261 of the Labor Code of the Russian Federation. The Constitutional Court also declared this clause illegal if the procedure applies to the only breadwinner in the family. From that moment on, the dismissal of a father of many children at the initiative of the employer became impossible.

At the initiative of the employer

According to Article 81 of the Labor Code of the Russian Federation, an employer has the right to dismiss an employee, including a father of many children, on the following grounds:

1. The fact of absenteeism has been established and recorded;

2. Failure to perform or improper performance of job duties;

3. The father of many children committed theft, squandered, and damaged the company’s property (there is direct intent);

4. After a gross violation of safety regulations ;

5. Provided false information when applying for a position;

6. other reasons expressly specified in Article 81

Find out important things: Dismissal for absenteeism: procedure for employer and employee

In case of downsizing or liquidation of a company:

· the father of the family was offered a vacant position - he refused

· the employment contract expired and did not want to renew it

· submitted a refusal to move to another city in connection with the reorganization and relocation of the company

· not suitable for another position due to qualifications, specialization, health (retraining is possible)

If discreditable circumstances arise (dismissal under an article), try to come to an agreement and resign by agreement of the parties. This will save you from problems in the future and will not affect your due cash payments.

It should be noted that the reorganization of an enterprise is not equivalent to its liquidation, therefore the boss is obliged to protect employees from being forced to look for work, that is, to offer work in a new organization. In this case, the father of many children is not fired, but is offered a vacant position with the same salary.

As for the need to work off upon dismissal at the initiative of the employer, the rules listed above apply. She's only on probation.

What other restrictions are there?

An employer, when hiring a father with many children, must study in detail the list of his rights so as not to violate them in the course of his activities. Thus, their full list is listed in Article 264 of the Labor Code of the Russian Federation. For example, fathers with many children cannot be hired by employers to work overtime, night shifts, or work on holidays. This also includes restrictions on long or too distant business trips. All these restrictions are necessary so that the parent can provide normal care for their children.

Father as the sole breadwinner in a large family

Firstly, it is necessary that the status of the sole breadwinner be secured by providing documents. Let's list the main ones.

Depending on the situation:

a certificate from the Central Employment Center stating that the other half is not working (or a certificate that they are studying)
certificate of disability of the child (requires constant care without interruption)
deprivation of parental rights (based on deprivation of the court, children in the custody of the father)
Civil Registry Office certificate of wife's death
children's birth certificate
certificate of a parent with many children

The main factors that will influence the employer’s decision (Article 261 of the Labor Code) when dismissing the father of a large family as the sole breadwinner will be:

1. The worker is a single father , he has:

Dependent disabled child under 18 years of age
Child under 14 years old

2. The father alone provides for a family in which:

from 3 children to 18 years old
3 children and one of them under 3 years old
3 children, one of them is disabled

In the above cases, severing the employment relationship with this employee is prohibited.

But, as with everything, there are exceptions, namely:

final liquidation of the organization

gross violation of labor discipline

failure to perform duties

moral behavior (for teachers)

false information was initially provided

damage, embezzlement, theft of company property

Dependent children or children in the family do not necessarily have to be their own, this also applies to adopted children.

It is worth noting the situation when the wife is on maternity leave, and the husband earns money for the whole family. Moreover, they have several children, including a minor. It is believed that the spouse is in an employment relationship , she is not unemployed, and will easily return from maternity leave, and you, as a father, will be able to take care of the children.

Find out important things: How to go on maternity leave for a man: payments

In any case, the preferential right to remain employed may apply.
But not all courts consider a spouse on maternity leave as a dependent. If you find yourself in such circumstances, you need to deal with it individually and consult with lawyers.

Status confirmation

The employer, when deciding to dismiss for one reason or another, studies the facts known to him about the employees. Thus, having 3 or more children allows you to receive privileges, but subject to official confirmation of your status. To do this, the following package of documents is provided at the place of work:

birth certificates for all children;
Marriage certificate;
copy and original certificate of a parent with many children;
confirmation of the fact that the man is the only source of income for the whole family (for example, a certificate of disability of the wife, of registering her as unemployed, or a paper from the institute indicating that the woman is in full-time study).

Special benefits are provided to single fathers . Then they don’t have to fear for their future, even if all the children are over 3 years old. However, you will have to prove to the employer that you have the status of a single father. This can be documented by a court decision to deprive the mother of parental rights, a certificate of her death, or other documents.

How does a father of many children get laid off?

Even with guarantees and benefits, unlike other workers, a father with several children still runs the risk of being laid off.

The boss mainly looks at professional skills, at labor productivity, leaving employees who will benefit him and the business.

But without complying with a number of compensatory and preliminary actions, management will not be able to expel the father of many children onto the street.

The boss must:

grant the right to another position
comply with the reduction procedure in accordance with the Labor Code of the Russian Federation
notify no later than 2 months in
pay benefits within this period

The father's preemptive right is that in the event of a reduction in staff, with equal professional indicators, he will be given a vacant position.

Since he has children in his care ( from 2 or more children, Article 179 of the Labor Code of the Russian Federation ), who do not yet earn money on their own.

Expert opinion

Andrey Tychkov, labor lawyer

When starting to reduce the number of employees, the head of the organization looks at who has the right to stay more than others, takes into account their qualifications and personal circumstances (as prescribed in labor legislation). Then he offers positions according to the specialization and capabilities of a father with many children until they run out. And even now not all. The boss is obliged to offer lower-level positions with a lower salary. Don't kick him out right away.

An offer from the director is received in writing, the employee agrees or refuses and signs.

If nothing is suitable, then the father terminates the contract and receives:

salary for hours worked

allowance for 2 months

vacation compensation

upon dismissal by agreement - three months' salary

if he gets to the central labor center on time, then the salary for the third month

In any controversial issues regarding the illegality of dismissal of a father with many children, it is better to consult a specialist, draw up a statement of claim and go to court. The employee does not lose anything, and if reinstated, he also receives a sum of money for days of forced absence.

Find out important: Reinstatement after dismissal by agreement of the parties - grounds

Entitled payments

Termination of an employment contract with an employee who has many children is accompanied by the accrual of generally accepted payments, which consist of:

from the monthly salary or salary not paid by the employer for another period already worked;
from compensation accruals for vacation days unused in the current year;
from severance pay if the employment contract is terminated on the initiative of management (for example, during liquidation or reorganization) or for reasons beyond the control of the parties (for example, illness).

Typically, termination of an employment contract is preceded by written notice from the employer, sent two weeks before the planned dismissal. This period is considered the so-called working out.

You can avoid working off by terminating an employment contract for valid reasons (for example, due to illness or relocation) or when signing an agreement document. In these cases, payment is made immediately or on the date specified in the agreement.

If the initiative comes from the employer, notice is sent two months before termination of the contract (as, for example, in the case of layoffs).

Only disabled family members can receive a state survivor's pension. What is an urgent pension payment and how can I get it? Detailed information on this issue is in our article. Recently, there has been more and more talk about increasing the retirement age in Russia. Will it happen? Read here.

How to protect your pre-emptive right

There are a number of nuances that help avoid problems from the very beginning. They are simple and underrated.

A. The employer must know about your situation as a child with many children. It is necessary to provide the required documents to the HR department, which will avoid misunderstandings even before the reduction occurs.

Q. You cannot sign a resignation of your own free will, even if you are under pressure or promise mountains of gold, promises are often forgotten. Forced dismissal is punishable.

C. In all controversial cases, consult a lawyer or the Labor Inspectorate

D. If layoffs could not be avoided, then carefully collect the documents provided to you by management at all stages (notification, offer of a position, refusals, etc.), suddenly the need for litigation arises

Try to monitor the employer’s actions during layoffs - any violation or incorrect action in this procedure plays into the hands of the employee

And don’t be afraid to go to court to get your job reinstated.

Procedure for terminating an employment contract

The procedure for dismissing an employee who has 3 or more children is carried out in the manner prescribed by Art. 84.1 Labor Code of the Russian Federation. The algorithm of actions is as follows.

There must be grounds for dismissal.

As mentioned above, a father with many children can only be fired in extreme cases at the initiative of employers. That is, the grounds will be:

An order to liquidate the organization and a notice given to the employee 2 months before the organization ceases its activities;
recorded systematic violation of labor discipline, recorded by acts of the organization, and there is also an act of bringing to disciplinary liability this year;
a gross violation of labor regulations was recorded (for example, the commission found a violation of safety regulations, which could lead to harm to other employees) and there is a written explanation from the employee.

In other cases, the grounds for dismissal are considered:

a personal statement from a father of many children to resign from work (Article 80 of the Labor Code of the Russian Federation) or a written agreement on dismissal by mutual agreement with the employer (Article 78 of the Labor Code of the Russian Federation);
notification issued to the employee 3 days in advance about the termination of the fixed-term contract (Article 79 of the Labor Code of the Russian Federation);
a document that allows you to terminate an employment relationship due to circumstances beyond the control of the parties, for example, medical confirmation of incapacity for work (Article 83 of the Labor Code of the Russian Federation).

A dismissal order is issued and personnel documents are drawn up.

In almost all cases, dismissal requires a special document - an Order (form T-8 or letterhead of the organization), a reference to which is made in the work book and other personnel documents.

The order contains basic information about termination of an employment contract:

date and number of the contract itself;
information about the dismissed father of many children;
a link to the rule on dismissal in the Labor Code of the Russian Federation and a link to the basis document (employee application, liquidation order, etc.).

The employee must familiarize himself with this document and sign for it. Refusal to familiarize yourself is recorded in the act.

In the work book, in accordance with Resolution of the Ministry of Labor of Russia No. 69, the following is filled out:

serial number and date of recording (groups 1 and 2);
reason for dismissal with reference to the norm of the Labor Code of the Russian Federation (column 3);
date and number of the dismissal order (column 4).

The employee must sign the personal card, which also contains information about the dismissal, that the work book has been received.

In addition to the work book, the following are issued:

military ID of a father with many children;
2NDFL income certificate (at the request of the dismissed person);
copy of the Order (also upon request).

A settlement is made with the dismissed father of many children.

In accordance with Art. 127 and 140 of the Labor Code of the Russian Federation, a person dismissed on his last working day is paid the remaining wages and compensation for unused vacation days.

If a father with many children is not fired for committing guilty actions, he has the right, instead of compensation before dismissal, to go on leave, which will be paid in accordance with the general procedure.

When an organization ceases its activities, employees are paid severance pay for the duration of employment (Article 178 of the Labor Code of the Russian Federation):

within 2 months;
for 3 months, if the dismissed person is registered with the employment authorities in a timely manner.

In the event of early dismissal due to the liquidation of an organization, a father with many children will also receive additional compensation for the period remaining from the dismissal until the day of liquidation of the enterprise.

Severance pay is also paid:

upon dismissal by agreement of the parties - in the amount agreed upon by the parties;
upon dismissal due to health reasons - in the amount of average earnings for 2 weeks.

The organization has the right to establish other payments for this category of employees by issuing appropriate local acts.

Judicial practice on dismissal of fathers with many children

The benefit of an advantage over employees who do not have the status of having many children is not a panacea. A parent does not have the right to do whatever he wants, to violate labor discipline, and in court to appeal with his position as the sole breadwinner and minor children.

Absenteeism

Citizen K., the father of three children, one child under three years old, provided for his family alone. He worked in the carriage depot in shifts. Once he did not show up for work, citing the fact that it was not his shift and he had to look after the children. Although the shift schedule was drawn up, he signed. He didn’t warn anyone, didn’t ask for time off.

The boss registered absenteeism, imposed a disciplinary sanction, albeit in violation of the procedure, and then the court overturned it. And he fired K.

A lawsuit was filed. The court sided with the boss.

Positive characteristics, small children and a non-working spouse could not convince him. This court decision could only be challenged through an appeal. And partially soften the decision, but employee K. was not reinstated in his position.

Wife on maternity leave

Citizen N. was dismissed from the internal affairs bodies upon reaching the age limit. Although other employees of the same age were retained. At that time, N. had 5 children, including those under three years old. The wife was on maternity leave.

A claim was filed. N. is a father of many children and, as he thought, the only breadwinner in the family; his wife did not work at that time.

But the court did not consider the decree to be a lack of labor relations. And he left the claim without satisfaction.

Who is recognized as such?

The legislation does not contain a definition of the terms “large family”, “large mother and father”. The criteria for determining large families are determined by regional legislative acts.

Most subjects of Russia consider those who are raising 3 or more minor children to be fathers and mothers of many children.

In some cases, the status of “large family” continues to apply even after the child reaches 18 years of age if he is studying full-time. Some regions (most often we are talking about the Caucasus) define 5 or more minors as a criterion for a large family.

Children in such families can be either natural or adopted.

A father of many children is thus one who has 3 or more children if:

he and his wife are not divorced;
or after the divorce the children remained to live with him;
or is a widower raising children on his own;
all children are registered at the same address.

Is it possible to fire?

The dismissal of a father with many children occurs under the same conditions and rules as a full-time employee with one child.
So, in order to calculate an employee who has 3 or more children on the initiative of the employer, it is necessary to have the appropriate basis provided for in Art. 81 Labor Code of the Russian Federation. Thus, dismissal is allowed for the following reasons:

inconsistency with the position held, for example, in terms of education level, professional skills, etc.;
repeated failure by a worker to fulfill his job duties in the absence of valid reasons. Moreover, dismissal in this case is possible if the employee has at least one outstanding disciplinary sanction, for example, a reprimand;
gross violation of duties. In this case, an act committed once is sufficient. In this case, it can be expressed as follows:

in absence from work. For absenteeism, you can completely lose your job if the employee was absent for more than 4 hours in a row without good reason;
appearing at the enterprise in a state of intoxication, for example, after consuming narcotic or toxic drugs, alcohol;
in submitting false documentation to the employer when applying for a job.
in the disclosure of information constituting a commercial or other secret protected by law, which became known during the performance of job duties;
committing theft at an enterprise;
violation of labor safety rules if serious consequences have occurred (or there is a danger of their occurrence), for example, an industrial accident.

loss of trust on the part of the enterprise administration due to the worker committing guilty actions;
providing workers with false information about their income if this is required of them by virtue of their position;
a gross violation of the obligations stipulated by the contract, which followed directly from the head of the enterprise or his deputy. In this case, an act committed once is sufficient;
providing workers with false documentation when applying for a job, for example, a university diploma;
the commission by a worker, who is entrusted with the performance of educational functions by an employment contract, of an offense contrary to moral standards, which is subsequently incompatible with the continuation of his professional activities;
application in practice of methods of education, expressed in physical or mental violence against the personality of pupils, in accordance with clause 2 of Art. 336 Labor Code of the Russian Federation.

It should be noted that the dismissal of a father of many children, like any other full-time employee on the grounds given above, must comply with the requirements established by law.

Thus, dismissal on defamatory grounds must be based on information and documents collected by management that irrefutably prove that the employee has committed such misconduct. For example, if an employee showed up for a shift while intoxicated, then the enterprise administration must first obtain a doctor’s report indicating that the subordinate was under the influence of alcoholic beverages or drugs. And also the violation will be evidenced by an act, a memorandum, and an explanatory note taken from the employee.

For dismissal due to inadequacy of the position, there must be a conclusion from the certification commission, and there must also be no possibility of transferring a father of many children to a more suitable position or job.

It should be noted that the layoff of a father with many children, as well as dismissal due to the liquidation of the employer, occurs on a general basis. Moreover, if an employee is released due to staff reduction, then the payment of severance pay for him is mandatory.

Some features of providing state support

Can the sole breadwinner of a family be fired if his wife is on maternity leave?

Considering that all fathers with many children worry about the needs of their children, and are also often in difficult circumstances due to increased expenses, the law provides for a similar list of benefits for all fathers.

However, due to the fact that fathers belong to different social categories, the list of benefits may be a little wider.

Serviceman

So, in particular, in pursuance of Article 19 of Federal Law No. 76, children of military personnel are not only registered in residential premises provided by the military unit, but also have the right to priority provision of a place in a kindergarten or school at the parent’s place of service, not to mention the possibility of transfer to University at the place of dad's service.

Also, children of military personnel are provided with mandatory and first priority places in health-improving summer camps and sanatorium-resort treatment.

Children from different marriages

Often, many dads consider themselves to have many children if they have three or more children born in different marriages, which in principle is such, but only under certain conditions. Thus, the law provides benefits for fathers with many children not so much for the purpose of gratitude, but in order to create the most comfortable living conditions for children in the family by easing the financial expenses of the parent.

That is, only a father who raises three children in a family at the same time, living with them together, and without transferring alimony to different families and participating in the upbringing of children only nominally, can be recognized as having many children.

Loner

It should be noted that the benefits for people who raise children without outside help are much wider, due to the fact that the father has to simultaneously replace both parents.

That is why single fathers with many children, in addition to the above list of benefits, are entitled to additional material payments. So, in particular, at the regional level, additional payments have been established for this category at a higher level in comparison with the all-Russian ones.

Possible reasons

Can a father of 3 or more children be fired for some reason? There are no specific grounds for dismissal of a father with many children, unless they relate to termination of the contract on the initiative of the organization’s management.

Leaving work at your own request (Article 80 of the Labor Code of the Russian Federation) is carried out in accordance with the general procedure , with the submission of an application:

in 2 weeks as a general rule;
1 month if the father of many children is an athlete, coach or is the head of an enterprise;
3 days in advance if he worked under a fixed-term employment contract concluded for 2 months or less.

Termination of employment relations by agreement of the parties (Article 78) implies mutual consent of both the father of many children and his employer. They can agree not only on the timing of dismissal, but also on the payment of severance pay and its amount.

Also, a father with many children can be fired:

due to the expiration of the employment contract, which is notified 3 days in advance;
due to circumstances beyond the control of his will or the will of the employer (permanent incapacity for work based on a medical report, a court verdict implying punishment in the form of imprisonment, etc.).

Answers to frequently asked questions

Can a mother or father with many children quit without working?

According to the Labor Code of the Russian Federation, parents with many children do not have such a right. However, when writing a letter of resignation, you can ask to be fired without working the required two weeks. It is advisable to provide a valid reason. But, unfortunately, it’s up to the employer to decide whether to allow them to not work for two weeks or not.

At the same time, if the mother or father cannot continue to work in case of enrollment in an educational institution, in case of retirement, and also if the employer violated labor laws or other labor rights, then they have the right to resign within the period specified in the application ( Article 80 of the Labor Code of the Russian Federation).

Are mothers with many children entitled to an additional day off per week?

There is no direct reference to such a right in the Labor Code. But, according to Article 262, such an additional paid day off once a week is given to one of the parents (guardians) of a disabled child. It turns out that if there is a disabled child in a large family, then the mother or father can count on such a day (or 4 days off per month).