The question of dismissing women on maternity leave or after it often arises, because employers, relying on their subordinates’ ignorance of the law, like to violate their rights, of course, for their own benefit. Also, employers simply hope that the fired woman will not defend her rights and will not apply anywhere, but will silently take the documents and leave. But as practice shows, cases where employees whose rights are violated silently leave their jobs are becoming fewer and fewer. In today's article I would like to tell you whether layoffs after maternity leave are legal?
Can an employee on maternity leave be laid off?
Child care leave is granted to women upon their request; the period of this leave ends when the child reaches the age of 3 years.
Many mothers complain that they were laid off while they were on maternity leave! This is illegal in the vast majority of cases, but there are exceptions, we will look at them below.
According to Article 256 of the Labor Code of the Russian Federation, during parental leave, the employee retains his place of work (position)!
Also, according to Article 261 of the Labor Code of the Russian Federation, termination of an employment contract with a woman with children under 3 years of age is not allowed. That is, if you are on maternity leave and the child is not yet 3 years old, you do not have the right to be dismissed from work at the initiative of the employer, including layoffs. But there is one exception here; however, if you are on maternity leave, you can only be fired if:
- Liquidation of the organization, or if the individual entrepreneur for whom you work has ceased its activities;
- If it turns out that when concluding an employment contract you provided the employer with false documents;
If you left maternity leave early in order to resume work, or according to Part 3 of Article 256 of the Labor Code of the Russian Federation, at the request of a woman, while on maternity leave it is possible to work on a reduced schedule, or remotely, at home, then you also cannot be fired at the initiative of the employer before the child turns 3 years old, but there are also exceptions here, firstly, two exceptions that we mentioned above and a few more that are described below, for example, an employee can be fired if the child is not yet 3 years old 3 years if:
- The employee repeatedly fails to fulfill the duties assigned to him without good reason, and the employee can be dismissed under this clause only if he already has disciplinary sanctions duly recorded by the employer, such as a reprimand or reprimand;
- If the employee has grossly violated his job duties one time. A gross violation is 1) absenteeism, absence without good reason from the workplace, during the working day, or for more than 4 hours in a row during a work shift; 2) the employee appears at the workplace in a state of intoxication, alcohol or drugs; 3) if an employee discloses a legally protected secret that has become known to him in connection with the performance of his job duties; 4) if the employee committed theft, embezzlement, destruction, or damage to someone else’s property at the place of work; 5) if the employee grossly violated labor safety rules, which resulted in grave consequences, an industrial accident, an accident, a catastrophe, or if his actions created a threat to the occurrence of the listed circumstances;
- If an employee servicing monetary or commodity assets has committed such actions that give rise to a loss of trust in this employee on the part of the employer;
- If an employee performing educational functions has committed an immoral act that is incompatible with the continuation of work in this organization and the performance of this work.
As we see, they can still lay off an employee during maternity leave, but only if he provided false documents when applying for a job and the employer discovered this, or the organization is simply liquidated, or the individual entrepreneur has ceased to exist.
In other cases, if a woman went to work early, or at her request she was transferred to a shortened working day or works remotely, then before the child turns 3 years old, the woman cannot be fired at the initiative of the employer; dismissal can only occur due to negative motives, that is, if the employee himself violates labor discipline and commits other actions that characterize the employee from the negative side, the list of reasons for dismissal before the child turns 3 years old is listed above.
Dismissal on maternity leave by agreement of the parties
It is not at all clear why you were not fired due to staff reduction; the employer, based on your situation, will not save much. We need to read the text of your application, I think your application was signed under Article 78 of the Labor Code of the Russian Federation called “Termination of an employment contract by agreement of the parties.”
For an employer, dismissing a pregnant employee or a woman on maternity leave on this basis minimizes the risk of her returning to the workplace through the courts. Termination of obligations with an employee by agreement of the parties is not controlled by the labor inspectorate. This procedure greatly simplifies the process of dismissing employees during staff reductions, if they are willing to accommodate them halfway.
Can they be laid off after maternity leave?
It is not possible to answer this question unequivocally; it all depends on many factors, for example:
- Have you interrupted maternity leave early? According to the law, it lasts until the child turns 3 years old, for example, your child has not yet turned 3 years old, but only 2 years old. Interrupting vacation means writing a statement to the employer in which you ask the employer to interrupt maternity leave and begin performing work duties. The fact of termination of maternity leave will be the beginning of your work duties, that is, as soon as you started work, maternity leave has ended;
- Maternity leave ended because the child turned 3 years old. By law, parental leave lasts until the child turns 3 years old, that is, as soon as the child turns 3 years old, parental leave ends by law and you begin to fulfill your work duties and take up your position.
Let's consider the first situation in which you interrupted maternity leave on your own initiative and the child is not yet 3 years old! In such a situation, you cannot be laid off by law, since according to Part 4 of Article 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of the employer is not allowed if a woman has a child under the age of 3 years.
That is, if you interrupted maternity leave in advance, and your child is not yet 3 years old, then the employer cannot lay you off, that is, fire you on its own initiative, this will be illegal. The exception here is if the organization is liquidated or the individual entrepreneur has ceased its activities, in such situations nothing can be done, even by law, in these situations the employment contract is terminated.
You can be fired only if you violate labor discipline; all the points for which you can be fired before the child turns 3 years old are listed in part 1 of the article. You can also be fired, as already mentioned, if the organization undergoes liquidation, or you provided false documents when applying for a job and this becomes clear.
Now let's talk about the second situation! When maternity leave ends according to the law, that is, the child is 3 years old. In such a situation, you can, of course, be laid off on the basis of Part 2 of Article 81 of the Labor Code of the Russian Federation; in such a situation, Part 4 of Article 261 of the Labor Code of the Russian Federation no longer works, since maternity leave ended after 3 years, respectively, the child also turned 3 years old and now you work on a common basis.
But there are exceptions, for example, you cannot be laid off under Part 2 of Article 81 of the Labor Code of the Russian Federation if you are a single mother raising a disabled child under 18 years old, or you are a single mother raising a child under 14 years old. In all other cases, you may be laid off.
In this situation, you may also be fired for negative reasons, which we listed in part 1 of the article.
But in order to lay off an employee, the employer must, on his part, perform actions in a certain order, and if he does not perform them, the layoff will be illegal.
Firstly, the employer must, before the upcoming dismissal of employees in connection with the liquidation of the enterprise, or a reduction in the number of staff, must notify the employees in writing and against signature at least 2 months in advance about the upcoming reduction in staff.
Also, when carrying out staff reduction measures, the employer is obliged to offer the employee another available vacant position, while the employer is obliged to offer the employee all vacancies that meet the specified requirements that the employer has in the given area.
But the most important thing here is that the employer notifies employees at least 2 months before the start of layoffs that layoffs will take place, otherwise the employee has the right to declare his layoff illegal in court.
So we figured out in what situations you can be laid off after maternity leave, as you can see, everything depends on the situation and each case is individual.
Dismissal on maternity leave is possible by agreement of the parties
And if there is no secret reason for such a desire? 1. Payment of unemployment benefits is paid from the 8th day, correctly, to those who quit under Article 36.p.1, BUT! 270 days! Those. not a year - 360, but 270. 2. Those who quit at their own request for a good reason - also get paid from the 8th 360, but on the day of days! That is, in your Labor Code it should be written like this: Dismissed at her own request to care for the child reaching the age of 14 in accordance with Article 38 of the Labor Code.
If the employee, after the expiration of the notice period, does not leave work and does not demand termination of the employment contract, the owner or the body authorized by him has the right not to dismiss him on the basis of a previously submitted application, except when another employee is invited to take his place, who, in accordance with the law, cannot refused to enter into an employment contract. An employee has the right, within a period specified by him, to terminate his employment at his own request, if the owner or body authorized by him does not comply with labor legislation, the conditions or collective labor agreement.
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How to defend your rights if you were laid off illegally?
According to paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on November 24, 2015), an application for reinstatement of an employee at work is submitted to the district court. Also, according to Part 1 of Article 392 of the Labor Code of the Russian Federation, an employee has the right to go to court to resolve a dispute about dismissal within 1 month from the date of delivery of the dismissal order, or from the date of issuance of the work book, or within 1 month from the day the employee refused to receive a copy of the dismissal order or work book.
That is, in disputes about dismissal, the employee has the right to go to court within 1 month from the day the employee was issued a dismissal order or work book, or from the day he refused to receive the order or work book.
I don’t see much point in contacting the labor dispute commission, although if you contact it, then they must respond to your application within 10 days, and be aware that while you are trying to solve the problem with the commission, the statute of limitations is already valid the little one is coming.
It is better to go straight to court, because the Labor Code does not contain provisions on the preliminary procedure for out-of-court resolution of a labor dispute, that is, you are not obliged to try to resolve the dispute pre-trial; when resolving labor disputes, such a procedure is not mandatory. Therefore, as soon as you find out that your rights have been violated, we immediately go to court and do not wait, because, as already mentioned in disputes about dismissal, the statute of limitations is 1 year.
If you missed the statute of limitations and went to court 1 month later, then you have the right to restore the statute of limitations, but for this you must have good reasons, which you must also prove, such reasons include:
- The plaintiff's illness;
- The plaintiff is on a business trip;
- The plaintiff did not have the opportunity to go to court due to force majeure;
- The deadline was missed due to the need to care for seriously ill family members.
If there were such reasons, then the terms will be restored to you. Also note that this is not an exhaustive list of valid reasons, the judge may consider other reasons to be valid if he deems them to be such.
Please be aware that the case for reinstatement at work must be considered by the court before the expiration of 1 month from the date of receipt of the application to the court.
Therefore, if you were fired illegally, you must immediately go to court with an application for reinstatement at work. In the content of the application, you need to write what labor laws your employer violated, as well as your requirements.
As you can see, nothing complicated.
What compensation is provided for dismissal due to reduction?
Be aware that upon dismissal due to layoff, the employer is obliged to pay the employee severance pay in the amount of average monthly earnings. Also, in addition to the severance pay, the employee retains the average monthly salary for the period of employment, but not more than 2 months from the date of dismissal, with the severance pay included.
But the payment period can be extended for another 1 month, but only if the employee contacts the employment service within two weeks and is not employed by it.
Also, when an employee is dismissed in accordance with Article 127 of the Labor Code of the Russian Federation, monetary compensation is paid for unused vacation.
Dismissal after maternity leave by agreement of the parties
Let's consider when such payments are due and when not. Types and procedure for settlements upon dismissal It is necessary to distinguish between situations when an employee is on maternity leave and when she is on maternity leave for up to three years.
3 tbsp. 217 of the Tax Code of the Russian Federation from 01.01.2012 are not subject to taxation (exempt from taxation) all types of compensation payments established by the current legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation), related to the dismissal of employees, with the exception, in particular, of the amount of payments in the form of severance pay, average monthly earnings for the period of employment, compensation to the manager, deputy managers and chief accountant of the organization in a part exceeding in general three times the average monthly salary or six times the average monthly earnings for workers dismissed from organizations located in the Far North and equivalent areas.
