Retrenchment after leaving maternity leave

Dismissal after maternity leave

If during the calculation period the employee has fully worked the standard time, then his average monthly earnings should not be less than 1 minimum wage.

By the way, it is more advisable to contact all of these institutions immediately. This is due to the fact that the former management of the enterprise may refuse to issue copies of orders to the employee, although they are obliged to do this in accordance with the norms of Article 62 of the Labor Code of the Russian Federation. But they will no longer be able to refuse the prosecutor’s office or labor inspector in order to avoid penalties.

At the same time, while on maternity leave, the employee has the right to work part-time. Moreover, this does not deprive her of the right to a monthly allowance for child care until he reaches one and a half years old (Article 256 of the Labor Code). In this case, there is no need to refer to past periods to calculate average earnings.

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Dismissal while on maternity leave

To calculate the average daily earnings for the purpose of paying compensation for unused vacation provided in calendar days, it is necessary to divide the amount of wages actually accrued to the employee for the billing period by 12 months, multiplied by the average monthly number of calendar days (29.4).

There is only a mention of qualifications and the need to apply professional standards, if any, for a certain profession.

Calculation of Severance Pay for Layoffs after Maternity Leave

In this case, the calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive) The average daily earnings for payment of compensation for unused vacations are calculated for last 12 calendar months (p.

Vacation days for which compensation must be paid are calculated in proportion to the months worked in accordance with paragraph.

Some employees, after maternity leave, decide to quit on their own in order to devote more time to their family, some quit due to the termination of their employment relationship, which was established for a certain period, and dismissal is also possible by agreement of the parties.

Speaking from a legal point of view, a maternity leave is a document that has nothing to do with vacations. But in everyday life, maternity leave is often referred to as the right of a working woman to rest during pregnancy, childbirth and childcare up to a certain age.

If a woman went on maternity leave before the main employee returned from maternity leave, she is not subject to dismissal even due to the expiration of the fixed-term contract. On the contrary, in such a situation, the contract is extended until the child turns 3 years old, and then it is terminated.

The duration of the usual period of care for an employee during pregnancy and childbirth is 140 days, and if the pregnancy and childbirth are complicated, then more, depending on the current situation. This duration is also established by the norms of the Labor Code of the Russian Federation.

This is important to know: How many days before the vacation is the application written?

The 11.67 calendar days that she earned while on maternity leave do not always save the situation. Example 2.

Yu.M. Chernaya has been working at JSC Empire since November 21, 2011.

An employee has the right to resign at her own request while at home with her child until he reaches one and a half or three years of age.

Downsizing after maternity leave

An employee cannot be laid off during any vacation. This point also applies to the entire period of maternity leave. According to the Civil Code of the Russian Federation (Articles 191-193), leaving maternity leave will be required the next day after the child turns three years old. It is on this day, that is, on the first working day, that a reduction can occur. In order to understand what payments will be in the future after the reduction, you will need to calculate the average earnings. Payouts on the exchange also depend on average monthly earnings.

It is worth considering that if the notice was sent later than two months in advance, then the woman will need to work the remaining time and only after that she will be reduced. All processes are carried out on a general basis. This means that after returning from maternity leave, a woman has all her rights, including the possibility of early dismissal.

Therefore, in the above situation, the calculation period for calculating average earnings for payment of severance pay and compensation for unused vacation will be twelve calendar months preceding March 2008 - March 2007 - February 2008.

Based on Art. 139 of the Labor Code of the Russian Federation, the average salary of an employee is calculated based on the salary actually accrued to him and the time actually worked by him for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, the calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive)

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There is only one option for laying off women during pregnancy and until the child is one and a half years old without violating labor laws.

When reorganizing an enterprise, implemented in various forms (merger, division, transformation, subordination, affiliation with another organization), there are also no legal grounds for dismissing employees on maternity leave. If during the reorganization the position of such an employee is abolished, the law obliges the employer to keep her on staff by transferring her to another position.

And vice versa, if she worked part-time or went back to work, then the number of days worked will be included, as well as maternity leave, in the period giving the right to receive severance pay. The basis for including such a period will be the employee’s personal statement, in accordance with Part.

If the employee did not have actually accrued wages or actually worked days for the billing period and before the start of the billing period, the average earnings are determined based on the amount of wages actually accrued for the days actually worked by the employee in the month of occurrence of the event that is associated with maintaining the average earnings . 8. If the employee did not have actually accrued wages or actually worked days for the billing period, before the start of the billing period and before the occurrence of an event associated with maintaining the average earnings, the average earnings are determined based on the tariff rate established for him, salary (official salary ) “The employer’s position in words is that since there were many periods where there was no income, they cannot endure them without finiteness and must make calculations according to clause 8.

In this case, the basis is taken the last 12 months before the period for which it is necessary to calculate and pay average earnings (Part 3 of Article 139 of the Labor Code of the Russian Federation). If the maternity leaver did not receive wages for these 12 months, or during this year she was on maternity leave, which is not included in the calculation, then the amount of average earnings is calculated from the wages received for the previous period, equal to the calculated one.

In order to be able to calculate the average earnings of a woman who, in fact, does not work at the enterprise, the employer, when dismissing a maternity leave, takes as a basis those months that preceded her going on maternity leave. This is explained, in particular, in the letter of the Ministry of Labor dated November 25, 2015 No. 14-1/B-972.

b) I don’t know what it’s called correctly - something related to unemployment. In this case, I am not obliged to consider the vacancies offered by the exchange, but can come to the company within three months, write a statement that I am still unemployed, and receive compensation. Is this true now? And how is this payment calculated?

b) I don’t know what it’s called correctly - something related to unemployment. In this case, I am not obliged to consider the vacancies offered by the exchange, but can come to the company within three months, write a statement that I am still unemployed, and receive compensation. Is this true now? And how is this payment calculated?

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In case of illegal dismissal of a pregnant woman or maternity leave, officials may be held legally accountable based on the results of the inspection.

As a result, the thought of cutting a useless position involuntarily arises. But at the same time, managers forget that women on maternity leave have some guarantees fixed by law. All of them are subject to strict execution, regardless of production necessity or optimization of staffing.

Reduction during maternity leave: nuances of legislation

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

What to do if an employee cannot go to work?

Being on care leave is only a right, but not an obligation, of an employee, and providing it is the obligation of the employer if there is an application from the employee. To prevent possible conflict situations when concluding a fixed-term employment contract with an employee hired to replace a “maternity leaver,” the wording “until the employee returns from maternity leave” should be used. It is better not to indicate the exact end date of the vacation.

How to apply for a return to work?

As mentioned earlier, in the 1C: Salary and Personnel Management 8 program there is no need to change the amount of the main planned accrual - the employee’s earnings while she is on vacation, because this accrual has been terminated for the period of vacation and the new salary, including as a result of the past indexation you can indicate to the employee after she returns to work. Moreover, one should not confuse the actual order to index the earnings of all employees and the reflection of this in the program.

Employment service after dismissal on maternity leave

Attention If this is your case, we strongly recommend that you read the material about whether an employer can state his own desire so that no one can influence its appearance. Therefore, if the mother herself is convinced of the need to go to work, then no arguments from her superiors can prevent her.

Based on Art. 139 of the Labor Code of the Russian Federation, the average salary of an employee is calculated based on the salary actually accrued to him and the time actually worked by him for the 12 calendar months preceding the period during which the employee retained his average salary. To calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of their sources. The procedure for calculating average wages is approved by Regulation No. 922 [2].

Clause 5 of Regulation No. 922 defines periods, as well as amounts accrued during this time, that are excluded from the calculation, for example, when an employee:

This is important to know: Providing leave to a single mother

received average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child;
received benefits for temporary disability or maternity benefits;
was released from work with full or partial retention of wages;
was on leave without pay (parental leave until the child reaches the age specified by law).

State social insurance benefits can also be paid to her if she works part-time or does work from home. But in this situation, she will have length of service giving her the right to annual paid leave.

RF). Let's figure out whether to pay the employee compensation for unused vacation if she wants to quit at the end of one of the vacations - maternity or child care.

Duration of maternity leave and payment

For example, a child is born in a family. His father decided to take leave to care for him: it’s possible. 70 days after giving birth, the mother’s sick leave for pregnancy and childbirth ends. From the next day, the father takes out parental leave, and the mother takes out annual leave. She may not go to work for another 28 days and receive her average salary. Both parents will be able to be with the child for almost another month, they will not be fired and will be paid.

Take a regular vacation without a queue

In two months, the grandmother will take care of the child, and the accountant will go to work. No one can force her to go on maternity leave if the woman herself has other plans: perhaps she does not want to lose her qualifications and money, or her presence at work is important for the family business.

5.1.5. Appeal the actions or inaction of the Company to the Federal Service for Supervision in the Sphere of Communications, Information Technologies and Mass Communications or in court if a citizen believes that Legal LLC is processing his personal data in violation of the requirements of Federal Law No. 152-FZ “On Personal Data” data" or otherwise violates his rights and freedoms.

destruction of personal data - actions as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material media of personal data are destroyed;

Compensation for liquidation of an enterprise while on maternity leave

The Company in its activities proceeds from the fact that the subject of personal data provides accurate and reliable information during interaction with the Company and notifies Company representatives about changes in his personal data.

No farewell payments are guaranteed when leaving after maternity leave: pay is calculated based on days worked, taking into account the appropriate rate and method of remuneration, but compensation in case of leaving after maternity leave is a different question. In this case, the accountant calculates the payment in accordance with Article 139 of the Labor Code (regulation 922).

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Almost no farewell payments are guaranteed upon dismissal after maternity leave , except for severance pay in the amount of average monthly earnings, and, possibly, compensation for unused vacation. In the first case, the payment is calculated based on the days worked, taking into account the corresponding rate and method of payment.

How to calculate?

As for leaving work of your own free will, there can be quite a few reasons : from basic family circumstances to the realization that during the time off, quite a lot was missed professionally (read about how to properly quit after maternity leave of your own free will here).

Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That is, first a woman must go to work and commit one of the listed acts. And only after that the employer can fire her or lay her off. In this case, a reference to Article 81 of the Labor Code of the Russian Federation would be legitimate.

How to legally lay off a maternity leave?

Additional agreements to employment contracts on changing the name of the employer are signed with employees. Only from this moment can procedures begin to change the organizational structure of the organization, including staff reduction, in compliance with the procedure established by law.

At the same time, maternity leave for up to 1.5 or 3 years is not taken into account in the total length of service, but maternity leave is taken into account. For standard maternity leave, an employee is entitled to 11.67 working days. They will be paid based on the average earnings of the employee.

Search algorithm : 28 days (average vacation duration) is divided by 12 and multiplied by the number of months (full) that the employee worked during the year. Then the days used are subtracted.

Reduction after maternity leave: what payments are due?

Of course, layoffs after maternity leave are a very unpleasant situation. The mother of a child must remember that, according to Article 261 of the Labor Code of the Russian Federation (Chapter 41), it is possible to dismiss the mother of a child under three years of age only in the event of liquidation of the organization, and the employer is obliged to notify the employee in writing of the upcoming dismissal at least two calendar months in advance.

Mothers should know their rights, because first of all, only they can make public any infringements on the part of their superiors, and besides, this is very important for their child. This is why these laws are written, which can protect them at any time.

In this case, the period for issuing compensation and benefits is exactly the same as for dismissal after maternity leave - on the day the employee officially leaves. Also, if there is a delay in payments, interest is charged due to the delay .

How to calculate?

24 Apr 2021 gmurist 133

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Dismissal after maternity leave

Continuing the currently most pressing topic of vacations, we will consider in detail how to calculate the amount of vacation pay.

Clause 5 of Regulation No. 922 defines periods, as well as amounts accrued during this time, that are excluded from the calculation, for example, when an employee:

received average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child;
received benefits for temporary disability or maternity benefits;
was released from work with full or partial retention of wages;
was on leave without pay (parental leave until the child reaches the age specified by law).

During the billing period of 12 calendar months before the day of dismissal from 04/01/2011 to 03/31/2012, the employee was on maternity leave and had no actual accrued wages; in the previous period from 04/01/2010 to 03/31/2011, she also did not have any time worked and actually accrued wages.

From February 9, 2012, she took 28 calendar days of annual leave, and from March 8 she went on maternity leave. Upon completion, Yu.M. Chernaya decided to resign of her own free will on August 1, 2012.

As you know, leaves can be basic, additional (they are determined both at the federal level for certain categories of workers and at a specific production site by decision of management and the trade union), without pay (unpaid), for pregnancy and childbirth, as well as for child care .

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

Vacation days for which compensation must be paid are calculated in proportion to the months worked in accordance with clause 35 of Rule No. 169, starting from the date of hire, with the days worked being:

less than half a month - discarded;
more than half a month is counted as a full month.

Leave in connection with pregnancy and childbirth is a period of time during which every working woman has the right to paid leave, which is issued in the last stages of pregnancy.

The employee was on maternity leave for up to 1.5 years. She decided to quit without going to work. How to calculate monetary compensation if the employee did not actually work during the billing period? What should be taken as average earnings?

After two months from the date of notification to employees, their employment is immediately terminated. To carry out this stage, the head of the organization issues dismissal orders, as a rule, in form No. T-8.

Important: Leaving or not returning from maternity leave will not affect the fact of dismissal; even Art. 261 TK. After the announcement of the closure of the company, the employer has the same obligations as with a partial reduction in staff or team size.

Legal rights of maternity leavers

When a woman goes on maternity leave, her position remains with her.
This is guaranteed by the Labor Code of the Russian Federation. The employer does not have the right to arbitrarily change her job responsibilities or position in the staffing table, regardless of whether the company is currently going through a problem period or not. An employee can return to work either upon completion of maternity leave or ahead of schedule. If a woman leaves her vacation early, she can start working:

in full, if it is possible to leave the child under the care of loved ones;
according to a part-time work schedule;
in a remote form, if her duties provide for such a possibility.

Early termination of maternity leave does not mean that a woman is not covered by the legal guarantees provided for women on maternity leave. According to the law, employers cannot lay off a woman on maternity leave when reducing staff, as well as in the event of an early return of a young mother to work.

The position must be retained until the child reaches 3 years of age. For single mothers, this period has been increased to 14 years. If a child is recognized as disabled, his mother cannot be laid off until the child turns 18 years old.

Ways to break an employment contract

The only possibility to legally dismiss a maternity leaver during a staff reduction without her consent is to lay off all employees during the complete liquidation of the enterprise.

If the company does not plan to close, the employer has only two options:

Organize dismissal at your own request. In some cases, women on maternity leave do not want to return to their old job and submit their resignation. There are also situations where management puts pressure on a young mother, forcing her to submit such an application. The second case is illegal, and the woman can seek protection from the prosecutor's office or the labor inspectorate. But not all those unfairly dismissed resort to this method, believing that even if they are reinstated, working with such management will not bring pleasure.
Dismissal under the article due to violations of the law by a maternity leaver. Despite having a small child, some women may not be moral models.

Some offenses are legal grounds for dismissing an employee, even if she is a woman on maternity leave or a mother who has returned from maternity leave early. These include:

There are grounds to believe that the employee does not have the skills necessary to perform the duties assigned to him.
Repeated violations of company regulations regarding work hours: numerous tardiness and absenteeism.
Theft of company property (but only after the employee is found guilty by the court).
Appearing at work in an inadequate state, that is, under the influence of alcohol or drugs.
Failure to comply with the conditions for maintaining trade secrets, resulting in damage to the enterprise.
Immoral behavior (this argument is very often used among teachers).

In both of these cases, the company management will first need to formalize the dismissal of the employee, and only then reduce his salary. It is impossible to retrench an employee who is on parental leave or who has left it early due to misconduct.

In cases where the management is completely satisfied with the employee’s qualities and only a reduction in a specific salary is required, the maternity leaver may be offered a transfer to another position. The need for this often arises during a company reorganization. In this case, the woman will need to interrupt her vacation for one day and sign documents on the transition to a new rate. After this, she can return to vacation again (if desired).

After a maternity leaver is transferred to a new position, her old salary can be safely reduced, and this will not be a violation of the law.

Features of dismissal of a temporary employee

When an employee goes on maternity leave, company management can either redistribute her responsibilities among other employees or hire temporary staff to replace the maternity leaver. As a rule, a fixed-term employment contract is concluded with such personnel, that is, an agreement that has a specific validity period. But an employee hired during the absence of the main employee can go on maternity leave.

The rules for dismissing temporary workers on maternity leave are slightly different from the guarantees provided to main employees:

the expiration date of the employment contract for a temporary employee on maternity leave is not grounds for dismissal;
the contract is extended until the end of parental leave, more precisely, until the day the child turns 3 years old;
a temporary employee cannot leave maternity leave early if the main employee has already started working;
the employment contract upon completion of 3 years of maternity leave is terminated due to the expiration of the contract term, that is, in fact, there is not a reduction, but the dismissal of the employee in accordance with the terms of the previously concluded agreement.

These rules were in effect in 2021 and have not yet changed. But it is possible that this will happen in the future.

Dismissal after maternity leave and compensation for vacation

If a private entrepreneur who is the employer of a pregnant or recently given birth employee officially terminates his activities.

This is important to know: Part-time parental leave

Cash compensation is paid to the employee upon dismissal for all unused vacations in accordance with Art. 127 Labor Code of the Russian Federation. Based on clause 28 of Rule No. 169 [1], upon dismissal of an employee, compensation for unused vacation is calculated in proportion to the time worked by him in the institution.

less than half a month - discarded;
more than half a month is counted as a full month.

How to calculate severance pay during layoffs - example calculations

Severance pay, which is paid one-time during dismissal, should be at the level of the average official salary. If the employment contract states that redundancy benefits must be paid in an increased amount, then the employer must make such a payment.
Social assistance based on the average salary, which is retained by the citizen for the period of searching for a new job.

Payment of benefits upon dismissal due to staff reduction is made no later than the day of dismissal of the employee (Article 140, Part 1 of the Labor Code of the Russian Federation). If the employee is not present at work on a given day, then the benefit must be paid the next day, no later than the day he submits a request for payment.

Reduction after parental leave: features of calculating severance pay

In accordance with clause 6 of the Regulations, if the employee did not have actually accrued wages or actually worked days for the billing period or for a period exceeding the billing period, the average earnings are determined based on the amount of wages actually accrued for the previous period, equal to calculated

Reduction of maternity workers during staff reduction: procedure and payments

If you are notified of a layoff while on vacation, you can be fired immediately after you return from vacation. In this case, the year of work before going on leave will be taken to calculate the benefit. If they notify you only after going back to work, then they won’t be able to cut you off until after two months, and then these two months and 10 months before the vacation will be taken into account for the calculation.

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Calculation of severance pay in the event of a layoff if you return from maternity leave

When carrying out measures to reduce the number or staff of an organization's employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of this Code.

N 922 To receive payment for the third month, you will need to register with the employment center within 2 weeks. In addition, you must be paid compensation for all unused vacations in accordance with Article 127 of the Labor Code of the Russian Federation (if applicable). You did not write when you were hired and fired when you were on maternity leave. The billing period for reference to the Central Bank should be the period from 12/01/12 – 02/28/13. Days and amounts attributable to maternity leave and child care leave are removed from the billing period. This means that for your case you need to follow clause 5 of the specified Procedure.

Retrenchment after leaving maternity leave

Day of leaving maternity leave

– the next working day after your baby turns 3 years old (Articles 191-193 of the Civil Code of the Russian Federation). If an employee has been hired to take your place, then on the day you return to work, your employment contract will automatically be terminated. This is possible because only a fixed-term employment contract could be concluded with him for the duration of the duties of the absent employee (Article 79 of the Labor Code of the Russian Federation). Why is this and not otherwise?

The birth of a child is a wonderful event for any woman. The social support measures in our country are decent: as in Italy (paid for 3 months after birth) or Spain and France (paid for 16 weeks after birth), you don’t have to face a problem 3-4 months after birth - or take unpaid leave to care for your baby , or look for a nanny.

01 Apr 2021 klasterlaw 149

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