There is a category among workers who may not be afraid of losing their job. These are future mothers. Retrenchment of a pregnant woman during staff reduction is unacceptable. If an employer risks violating the rule enshrined in Article 261 of the Labor Code of the Russian Federation, he will be held accountable, and the dismissed woman will be reinstated.
Do pregnant women have special labor rights?
The law protects expectant mothers from losing their position. If optimization, structuring, cost reduction and similar changes in the operation of the enterprise begin, the employer may begin to reduce the number of employees.
If at the time of liquidation the woman is on maternity leave, the severance pay will be calculated based on the average earnings for the year preceding her maternity leave.
In addition to benefits, the dismissed person must receive a certificate of average salary for the 2 years preceding the year of dismissal and the time worked in the current year for which insurance premiums were calculated.
In total, a woman who is on labor and employment leave or care leave and dismissed following liquidation will receive:
- Severance pay in the amount of average monthly earnings.
- Average monthly earnings for the period of employment.
- If you are dismissed early, you are entitled to additional compensation for the period of employment in the amount of average earnings calculated from the date of dismissal until the moment of liquidation of the enterprise (Part 3 of Article 180 of the Labor Code of the Russian Federation).
If the dismissal occurred before the birth of the child, after giving birth the mother needs to go to the social security department with a package of documents, where she will be accrued and paid benefits for labor and labor, and then for child care.
Have a question about the legality of dismissing a pregnant woman? Ask it in the comments
1.1. This document defines the policy of Limited Liability Company "" (hereinafter referred to as the Company) regarding the processing of personal data.
1.2 This Policy has been developed in accordance with the current legislation of the Russian Federation on personal data.
1.3 This Policy applies to all processes of collection, recording, systematization, accumulation, storage, clarification, extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data carried out using automation tools and without the use of such means.
1.4. The policy is strictly followed by the Company's employees.
- Definitions
Personal Information- any information relating to a directly or indirectly identified or identifiable individual (subject of personal data);
operator- state body, municipal body, legal entity or individual, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;
processing of personal data- any action (operation) or set of actions (operations) performed using automation tools or without the use of such means with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;
automated processing of personal data- processing of personal data using computer technology;
dissemination of personal data- actions aimed at disclosing personal data to an indefinite number of persons;
provision of personal data- actions aimed at disclosing personal data to a certain person or a certain circle of persons;
blocking of personal data- temporary cessation of processing of personal data (except for cases where processing is necessary to clarify personal data);
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;
depersonalization of personal data- actions as a result of which it becomes impossible to determine the ownership of personal data to a specific subject of personal data without the use of additional information;
personal data information system- a set of personal data contained in databases and information technologies and technical means that ensure their processing.
- Principles and conditions for processing personal data
3.1. The processing of personal data is carried out on the basis of the following principles:
1) The processing of personal data is carried out on a legal and fair basis;
2) The processing of personal data is limited to the achievement of specific, predetermined and legitimate purposes. Processing of personal data that is incompatible with the purposes of collecting personal data is not permitted;
3) It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes incompatible with each other;
4) Only those personal data that meet the purposes of their processing are subject to processing;
6) When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, relevance in relation to the stated purposes of their processing are ensured.
7) The storage of personal data is carried out in a form that makes it possible to identify the subject of personal data no longer than required by the purposes of processing personal data, unless the period for storing personal data is established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. The processed personal data is subject to destruction or depersonalization upon achievement of the processing goals or in the event of loss of the need to achieve these goals, unless otherwise provided by federal law.
8) 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.
3.2. The company processes personal data only in the following cases:
- processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
- the processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts;
- processing of personal data is necessary for the execution of a judicial act, an act of another body or official that is subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
- processing of personal data is necessary for the execution of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as for concluding an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be a beneficiary or guarantor;
- the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data, if obtaining the consent of the subject of personal data is impossible;
3.4. The company has the right to entrust the processing of personal data of citizens to third parties on the basis of an agreement concluded with these persons.
Persons processing personal data on behalf of Start Legal Company LLC undertake to comply with the principles and rules for the processing and protection of personal data provided for by Federal Law No. 152-FZ “On Personal Data”. For each person, a list of actions (operations) with personal data is determined that will be performed by the legal entity processing personal data, the purposes of processing, the obligation of such a person to maintain confidentiality and ensure the security of personal data during their processing is established, and requirements for the protection of processed personal data are specified. data.
3.5. If the Company entrusts the processing of personal data to another person, the Company is responsible to the subject of personal data for the actions of the said person. The person processing personal data on behalf of the Company is responsible to the Company.
3.6. The Company does not make decisions based solely on automated processing of personal data that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests.
3.7. The company destroys or depersonalizes personal data upon achieving the purposes of processing or in the event of the loss of the need to achieve the purpose of processing.
- Subjects of personal data
4.1. The company processes personal data of the following persons:
- employees of the Company, as well as entities with whom civil contracts have been concluded;
- candidates to fill vacant positions in the Company;
- clients of LLC Legal Company "Start";
- users of the website of LLC Legal Company "Start";
4.2. In some cases, the Company may also process personal data of representatives of the above-mentioned personal data subjects authorized on the basis of a power of attorney.
- Rights of personal data subjects
5.1. The subject of personal data whose data is processed by the Company has the right to:
5.1.1. Receive from the Company within the time limits provided for by law the following information:
- confirmation of the fact of processing of personal data by LLC Legal Company “Start”;
- on the legal grounds and purposes of processing personal data;
- about the methods used by the Company for processing personal data;
- about the name and location of the Company;
- about persons who have access to personal data or to whom personal data may be disclosed on the basis of an agreement with LLC Legal Company "Start" or on the basis of federal law;
- a list of processed personal data relating to the citizen from whom the request was received and the source of its receipt, unless a different procedure for providing such data is provided for by federal law;
- about the terms of processing of personal data, including the periods of their storage;
- on the procedure for a citizen to exercise the rights provided for by the Federal Law “On Personal Data” No. 152-FZ;
- name and address of the person processing personal data on behalf of the Company;
- other information provided for by the Federal Law “On Personal Data” No. 152-FZ or other federal laws.
5.1.2. Request clarification of your personal data, their blocking or destruction if the personal data is incomplete, outdated, inaccurate, illegally obtained or is not necessary for the stated purpose of processing.
5.1.3. Withdraw your consent to the processing of personal data.
5.1.4. Demand the elimination of unlawful actions of the Company in relation to his personal data.
5.1.5. Appeal the actions or inaction of the Company to the Federal Service for Supervision of Communications, Information Technology and Mass Communications or in court if a citizen believes that LLC Legal Company “Start” is processing his personal data in violation of the requirements of Federal Law No. 152- Federal Law “On Personal Data” or otherwise violates his rights and freedoms.
5.1.6. To protect your rights and legitimate interests, including compensation for losses and/or compensation for moral damage in court.
- Responsibilities of the Company
6.1. In accordance with the requirements of Federal Law No. 152-FZ “On Personal Data”, the Company is obliged to:
- Provide the subject of personal data, upon his request, with information regarding the processing of his personal data, or, on legal grounds, provide a reasoned refusal containing a reference to the provisions of the Federal Law.
- At the request of the personal data subject, clarify the processed personal data, block or delete if the personal data is incomplete, outdated, inaccurate, illegally obtained or is not necessary for the stated purpose of processing.
- Keep a log of requests from personal data subjects, which should record requests from personal data subjects to receive personal data, as well as facts about the provision of personal data in response to these requests.
- Notify the subject of personal data about the processing of personal data if the personal data was not received from the subject of personal data.
The following cases are exceptions:
The subject of personal data is notified of the processing of his personal data by the relevant operator;
Personal data was obtained by the Company on the basis of federal law or in connection with the execution of an agreement to which the subject is a party or beneficiary or guarantor.
Personal data was obtained from a publicly available source;
Providing the subject of personal data with the information contained in the Notice of processing of personal data violates the rights and legitimate interests of third parties.
6.2. If the purpose of processing personal data is achieved, the Company is obliged to immediately stop processing personal data and destroy the relevant personal data within a period not exceeding thirty days from the date of achieving the purpose of processing personal data, unless otherwise provided by the agreement to which the subject is a party, beneficiary or guarantor personal data, another agreement between the Company and the subject of personal data, or if the Company does not have the right to process personal data without the consent of the subject of personal data on the grounds provided for by No. 152-FZ “On Personal Data” or other federal laws.
6.3. If the subject of personal data withdraws consent to the processing of his personal data, the Company is obliged to stop processing personal data and destroy personal data within a period not exceeding thirty days from the date of receipt of the said withdrawal, unless otherwise provided by an agreement between the Company and the subject of personal data. The Company is obliged to notify the subject of personal data about the destruction of personal data.
6.4. If a subject receives a request to stop processing personal data in order to promote goods, works, and services on the market, the Company is obliged to immediately stop processing personal data.
6.5. The company is obliged to process personal data only with the written consent of the subject of personal data, in cases provided for by Federal Law.
6.7. The company is obliged to explain to the subject of personal data the legal consequences of refusal to provide his personal data if the provision of personal data is mandatory in accordance with Federal Law.
6.8. Notify the subject of personal data or his representative about all changes concerning the corresponding subject of personal data.
- Information about the measures taken to protect personal data
7.1. When processing personal data, the Company takes the necessary legal, organizational and technical measures to protect personal data from unauthorized or accidental access, destruction, modification, blocking, copying, provision, distribution of personal data, as well as from other unlawful actions in relation to personal data.
7.2. Ensuring the security of personal data is achieved, in particular:
- identifying threats to the security of personal data during their processing in personal data information systems;
- application of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems necessary to fulfill the requirements for the protection of personal data, the implementation of which ensures the levels of personal data security established by the Government of the Russian Federation;
- the use of information security means that have passed the compliance assessment procedure in accordance with the established procedure;
- assessing the effectiveness of measures taken to ensure the security of personal data before putting into operation the personal data information system;
- taking into account computer storage media of personal data;
- detecting facts of unauthorized access to personal data and taking measures;
- restoration of personal data modified or destroyed due to unauthorized access to it;
- establishing rules for access to personal data processed in the personal data information system, as well as ensuring registration and accounting of all actions performed with personal data in the personal data information system;
- control over the measures taken to ensure the security of personal data and the level of security of personal data information systems.
- assessment of the harm that may be caused to subjects of personal data in the event of a violation of the legislation of the Russian Federation in the field of personal data, the relationship between this harm and the measures taken aimed at ensuring compliance with the legislation of the Russian Federation in the field of personal data.
When an organization closes, all employees go through a number of unpleasant moments. Some people quit on their own, many change their job to a similar one or go into another activity, the rest are subject to a general wave of freeing up work space. So what to do with those employees who, at the time of reorganization or bankruptcy, do not have the opportunity to influence and determine the further course of events? Below we will consider the basics of the emergence and ways of resolving the following problem of the company’s activities - the dismissal of a maternity leave during the liquidation of the enterprise.
How to resolve such a situation with mutual benefit for both parties? Let's look at the basic rules for dismissing employees on maternity leave or parental leave. We recommend that you carefully read and study the details and nuances of this procedure. In the event of a violation by personnel specialists, any employee, including women on maternity leave, has the right to go to court with demands to restore their rights, make a full payment of all funds, etc.
The Labor Code provides support and assistance to women on maternity leave at the time of liquidation of their permanent place of work. Here you have the opportunity to turn to the guarantees that employees have and are regulated by law on how to properly liquidate an enterprise without causing much harm to employees.
At the initial stage, it is necessary to consider and analyze the definition of the concept of “liquidation of an enterprise”. This is the termination of any areas of the company’s activities, the main purpose of which is exclusion from the general state register. There are two main types of how a company can be liquidated:
- On a voluntary basis - the final decision is made by the employer. It is possible to transfer to another company (subject to written consent).
- On a preliminary basis - here the final word remains with the parent companies. And all responsibility for the subsequent search for a worker for the employee is handled by the employment service.
Procedure for dismissing a maternity worker during liquidation of an enterprise
Let's consider the sequence of actions when dismissing an employee on maternity leave. The procedure includes five points of registration of the procedure:
- After the reorganization of the enterprise, the manager must notify the employment center of the fact that such an employee is on the list of those submitted for dismissal.
- Two months in advance, the director announces the event to employees in documentary form and with the personal signature of senior management. The text itself must contain the exact date of termination of the contract and the possibility of obtaining labor documents. The document itself is printed in two copies so that both parties retain the original document. The verbal form of this event is not valid.
Important! If the employee agrees, the documents can be sent to the postal address by registered mail.
- On the appointed date, management issues and signs a resolution, which is familiarized to all current employees.
- The accounting department issues the final cash settlement, which also includes the necessary compensation.
- The list of documents is given on the same day. A woman on maternity leave is also provided with copies of a sick leave form and a previously written application for going on leave.
Important! This entire set of documents will be required for the subsequent registration of cash benefits paid to women on maternity leave to government agencies.
In view of the possibility of such events occurring, it is worth knowing and operating with the concepts of the rights of women and children in accordance with the norms of the legislation of the Russian Federation and issues of judicial proceedings. The dismissal of an employee on maternity leave occurs on the basis of paragraph 1 of Article 1 of the Labor Code of the Russian Federation. At the same time, a decree is issued, which the woman must familiarize herself with.
At the same time, an employee on maternity leave has the right to resign immediately after receiving information about the liquidation of the company. This procedure is done at the personal request of the employee in writing. In this case, she also receives all the necessary payments and a set of documents.
How are the rights of women and their children regulated at work?
The main document regulating the rights and obligations of the parties is the Labor Legislation of the Russian Federation (Chapter 41). And Article 253 of the Labor Code of the Russian Federation coordinates the restriction of women’s activities in general production. Below we consider the bilateral obligations of the employee and the manager:
A female employee at work can:
- refuse to perform work manually if the weight of the cargo exceeds the permissible limit;
- during pregnancy, take another position or change local place of work in order to avoid external influence of negative factors.
Attention! All additions to the above conditions must be discussed directly with the director of the enterprise and written down and signed in the employment contract.
At the same time, the employee can also terminate the contract if there are the following number of reasons:
- Mutual and agreed upon agreement of both parties.
- Personal prerogative of the employee.
- Expiration of the document (it is possible to make an extension or transfer).
- An employee returning to work from maternity leave (in case of temporary replacement of a colleague).
- Liquidation of the enterprise.
In turn, the manager is strictly prohibited from following points:
- dismiss a person on personal initiative;
- give additional work load;
- call an employee from vacation (during maternity leave or after childbirth);
- send on business trips;
- pay money towards vacation.
Rules for terminating employment contracts
The rules provide for the following point. Due to the fact that employees are creditors, when the enterprise is liquidated due to bankruptcy, they will not be able to satisfy all the demands of the employees in a timely manner.
Despite this fact, obligations remain, and the employee has rights to a number of payments from the employer. In order to receive them, it is necessary to fill out and certify the documentation in the correct order at all stages of dismissal.
Here you should be especially attentive and thorough when filling out the items.
| Column | Description | Result |
|---|---|---|
| 1 | Serial number | 1. Entries in the employee’s individual card (T-2, No. T-54, T-54a) |
| 2 | The exact date of termination of the contract | |
| 3 | Order number, reasons, justification according to the norms of official documents (labor legislation) | 2. Issuance of a work book against the signature of the recipient |
| 4 | Signatures of the company and the responsible person | 3. Other papers ready for issue (certificate 2-NDFL, payslips, certificate of employment, etc.) |
Preparation of personnel documentation
Paperwork includes the standard procedure for dismissing workers. As part of the ongoing activities, the director writes a dismissal order with the following nuances:
- order number;
- name of company;
- the exact reason for the dismissal of a female employee;
- the title of the document and a current statement of its essence;
- employee's position;
- reason for terminating the employment contract.
Attention! If an enterprise closes, an employee on maternity leave can be dismissed on a general basis.
In any case, while on maternity leave, the woman does not show up for work, which makes it impossible for her to immediately notify her about the event. The employer’s task is to find an opportunity to attract an employee to review the document in person.
Directly on the day of dismissal, the company must provide the employee with the following list of documents:
- salary certificate;
- personal income tax certificate 2;
- dismissal order;
- a copy of the application for receiving funds up to 1.5 and three years;
- a copy of the sick leave certificate.
Recording in labor
In the event of liquidation of the company, the dismissal process is initiated and regulated by the employer. In order for everything to go smoothly and without problems, you need to do a number of important actions:
- Issuance and signing of the order.
It is drawn up and signed by higher authorities with the obligatory indication of the date, the true reason for the dismissal and an indication of the payment of full monetary compensation due to the employee.
- Making an entry about the fact of dismissal in the book and personal file.
Upon signing the above order, the management of the personnel service notes the entry in the employee’s work book. Here, only two points play a key role: indicating the reason for dismissal, according to the article of the Labor Code of the Russian Federation, and the number of the signed order.
Therefore, it is worth carefully monitoring the credibility and awareness of women. In view of this, it should be understood that only the personnel department can enter current data on the dismissal of an employee. The person resigning can check and confirm the accuracy of the record directly. It is he who will subsequently be responsible for the entered data.
So, summarizing the above, we list the main points of recording a work book:
- Individual serial number of the record.
- Date of immediate dismissal of the employee.
- The reason for the fact is in the format “...in connection with the liquidation...”.
- Reference to the article of the Labor Code of the Russian Federation.
- Justification for the corresponding entry.
- Personal data of the employee who made entries in the book (full name, signature).
Payments and compensations
During the period of closure of the company, senior management, in addition to the main obligations, also has the extremely important task of paying compensation to employees. They receive money for losing their permanent job. The amount of funds for payment must contain the following items:
- the entire salary due to the employee;
- compensation for unpaid vacation;
- necessary benefits upon its liquidation.
Important! If required by the employment service, the two-month period for payment of unemployment benefits may be extended by another month.
The first two points are the usual payments upon dismissal of employees. In contrast, the subject of the third is liquidation allowance - a specialized type of payment, which is equal to two average monthly salaries of an employee. A method designed to support an employee while looking for a new place to earn money. Valid if, after 14 days after dismissal, the woman was unable to move to work in another organization.
Important! Despite the fact that an employee on maternity leave cannot start looking for work at the moment, they are also entitled to this type of payment in full. Accounting takes the average earnings of a woman on maternity leave and multiplies it twice.
In some cases, for example, complete bankruptcy of an organization, an individual system for calculating payments operates. All compensation is paid based on the financial capabilities of the enterprise. What is important, the obligation to return funds still remains with the company.
The company must pay the full payment of all money to the maternity leaver before the dismissal procedure. Otherwise, the entire process will be completed illegally.
If there was a fact of early termination of the working relationship by agreement with the employee, then he has the opportunity to receive money for the entire period until he officially finds employment in a new workplace. The total monthly payment amount is on average determined as the monthly earnings of work at the enterprise before its liquidation.
There are also a number of special payments for women on maternity leave: a one-time child benefit and payments for the care of newborns, paid monthly. If a woman has provided a full package of documents for receiving cash payments, then even after the liquidation of the company she will still receive them. Here the social service for the protection of the population will be responsible for order.
Otherwise, the amount will be calculated as 40% of the average wage for the previous period before the dismissal of the woman on maternity leave. Recalculations are not made if at the time of the incident the woman was already on leave to take care of her child.
Subtleties and nuances of the procedure
In a separate area, it is worth considering the situation when, on the date of liquidation of the company, the woman was already on maternity leave. The law of the Russian Federation also provides them with a transfer of cash benefits in the amount of the average salary, based on the value of the previous year.
The situation regarding sick leave is resolved as follows:
- if it was provided before the liquidation of the company, then its amount of payments is considered as average monthly earnings;
- if the sick leave was received after dismissal, accordingly, the expenses are paid by the state, but here there are a number of exceptions.
According to labor standards of law, an enterprise is obliged to pay sick leave to a woman within a month after her dismissal in the following cases:
- the unplanned transfer of her husband to a new place of work;
- illness and physical inability to continue working in the area;
- an urgent need to care for a severely ill patient, as well as a person who has received the first group of disability.
Knowing the legal norms and applying them in practice, you can successfully solve any difficulties in resolving such situations. After accepting the complaint, the court makes a fair decision, based on strict observance of the rights of employees dismissed from work on maternity leave.
For example, the case of double liquidation of the company was exposed. In the first case, only employees on maternity leave received notification. After the two-month period, the company worked on the market for another month. And then after the final completion of the company's work, the employees tried to prove their rights. By a court decision, the current liquidation situation of the company was declared invalid and all rights of employees were restored.
As a result, we can conclude that although the situation with the dismissal of an employee on maternity leave during the liquidation of an enterprise is not entirely standard, the law still satisfies and protects the interests of both parties. The most important thing is to firmly know your rights and obligations and, if they are not fulfilled, seek help and support from the relevant authorities.
Liquidation of a branch - dismissal of employees on maternity leave in this case, it is carried out according to general rules, but a number of features still exist. You will learn about the conditions for terminating an employment contract with people on maternity leave during the liquidation of a branch in our article.
Features of dismissal during the liquidation of a branch
The procedure for dismissing all employees by decision of the employer (usually the management of the parent company) due to the liquidation of a branch depends on the location in which the structural unit is located. Let's consider the possible options in detail.
If the branch is in the same locality as the parent organization
In the case where the branch being liquidated is located in the same locality as the parent enterprise (even if it is territorially subordinate to another division of the Federal Tax Service), dismissal of maternity workers at the initiative of the employer is not allowed. The fact is that such liquidation of a separate unit is equivalent to a reduction in staff, therefore dismissal is carried out on the grounds provided for in paragraph 2 of part 1 of Art. 81 Labor Code of the Russian Federation. By virtue of Part 6 of this norm, termination of an employment contract at the initiative of the employer (except for cases of liquidation of a legal entity) with an employee on leave (including maternity leave) is impossible.
If the branch is located in another area
According to Part 4 of Art. 81 of the Labor Code of the Russian Federation, the liquidation of a branch (or other separate division) that is located in a different area from the location of the parent organization is carried out according to the same rules as the liquidation of a company. This means that the employment contract with the employee is terminated on the basis of clause 1, part 1 of the above article.
What is meant by another locality in the context of labor legislation? This is the territorial location of a separate subdivision outside the administrative border of the locality in which the parent enterprise is registered (part 3, paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts of the Labor Code of the Russian Federation” dated March 17, 2004 No. 2).
Closing a branch as liquidation of an organization and dismissal of employees on maternity leave
If a branch located outside the administrative-territorial border of the locality in which the enterprise is located is liquidated, labor legislation does not provide any special guarantees for employees, including those on maternity leave. According to Part 1 of Art. 261 of the Labor Code of the Russian Federation, during the liquidation of a company, termination of an employment contract with a pregnant woman is permissible. The same grounds, according to Part 4 of the same article, apply to the dismissal of women with children under 3 years of age and other socially vulnerable categories of employees.
In addition, the ban on dismissal of employees who are on sick leave or on leave (including maternity leave due to pregnancy or child care), in accordance with Part 6 of Art. 81 of the Code is also not valid. Thus, upon liquidation of such a branch, maternity workers can be dismissed on a general basis.
The procedure for dismissing a maternity leave person
When liquidating a branch, the employer must notify the employees of this separate division at least 2 months before the proposed event, and this must be provided to each employee against signature (Part 2 of Article 180 of the Labor Code of the Russian Federation).
If a branch located in the same locality as the main organization is liquidated, then the employer, in accordance with Part 1 of this article, must offer employees another job (for example, in another structural unit within the same locality). However, even if an employee on maternity leave refuses the vacancies offered to him, his dismissal is possible only after the end of his leave. It must be remembered that termination of an employment contract with mothers of children under 3 years of age and single fathers of children of the same age is prohibited.
Registration of dismissal
Registration of dismissal of employees of a branch located in an area different from the location of the head office is carried out in the same manner as during the liquidation of a company.
Thus, the branch manager will need:
- Notify those being laid off in advance of the impending termination of employment contracts.
- Notify the trade union body (if there is one) and the employment service about the upcoming liquidation.
- Issue orders for the dismissal of employees.
- Make appropriate entries in the work books and personal cards of dismissed employees and make final payments to them.
For those employees who are on maternity leave at the time of liquidation of the branch, the rules for dismissal remain the same as for other categories of employees.
Issuance of an order
The order is issued based on the decision of the management of the parent company; it is usually based on form T-8, approved. Resolution of the State Statistics Committee “On approval of unified forms...” dated 01/05/2004 No. 1 (hereinafter referred to as Resolution No. 1). The contents of the order are brought to the attention of all employees against signature. If for some reason this is impossible to do, for example, the employee is not at work (is on maternity leave) or he refuses to sign, then a corresponding entry is made in the order (Part 2 of Article 84.1 of the Labor Code).
Don't know your rights?
Drawing up a note-calculation
Upon dismissal due to the liquidation of a branch, a settlement note is drawn up, which is best drawn up on the basis of a unified form. T-61, approved. Resolution No. 1. This form is used to calculate and record all due payments to a dismissed employee who is on maternity leave. When calculating payments, compensation for unused annual leave and deduction for leave that was used in advance are taken into account.
Filling out a work book
A fully completed work book must be issued on the last day of work before dismissal (Part 4 of Article 84.1 of the Labor Code). Due to the fact that an employee on maternity leave is not present at the workplace on the last day of work, the work report, upon his request, is sent by mail or transferred for archival storage.
A record of dismissal is made in the work book with reference to clause 1, part 1, art. 81 TK. The entry made is certified by the employee responsible for maintaining such documents and the seal of the parent company (if there is one in the organization). In addition, according to clause 35 of the rules for maintaining and storing work books, approved. Government Decree “On Work Books” dated April 16, 2003 No. 225 (hereinafter referred to as the Rules), the signature of the dismissed employee must be affixed. Since a person on maternity leave does not go to work until the end of the corresponding leave, the work report, in accordance with clause 36 of the Rules, is, with his consent, sent to his home by mail.
Filling out a personal card
Personal card, which is usually issued by f. T-2, approved. Resolution No. 1 contains all personal information about the employee. Upon dismissal due to the liquidation of a branch, a corresponding entry is made in it. When issuing a work book to an employee, a corresponding entry is also made in the personal card, with which the dismissed employee must be familiarized with his signature (clause 41 of the Rules).
Payments upon dismissal
When an employee who is on maternity leave is dismissed due to the liquidation of a branch located in another area, he is entitled to payments, as for other categories of branch employees.
- Severance pay, the amount of which is equal to one average monthly salary.
- Compensation in the amount of average monthly earnings for each month that expired before employment (but not more than 2 months). In rare cases, it is possible to increase the period for payment of compensation to 3 months - a decision on this is made by the employment service, subject to registration within two weeks after dismissal and the absence of the opportunity to provide a new job. The payment of benefits for the third month is made by the employer based on the decision of the employment service.
In the event that the employer and employee have reached an agreement on the early termination of the employment contract (before the moment of liquidation), the employee, in accordance with Part 3 of Art. 180 of the code, additional compensation is due. To achieve such an agreement, the employee must submit a corresponding application, and the employer must approve it. The amount of such compensation is equal to the average monthly earnings, calculated in proportion to the time remaining before the expiration of the 2-month period established in Part 2 of the above article.
The text of the application for additional compensation may be as follows:
« In response to your notice of termination of the employment contract due to the liquidation of the branch of Kvantiz LLC in Omsk dated November 15, 2016, received by me on November 17, 2016, I inform you of my desire to terminate the employment contract early, i.e. before the expiration of the established 2-month period term. I hereby ask you to terminate the employment contract with me on November 18, 2016 under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation with the payment of additional compensation in the amount of average earnings, calculated based on the period remaining until the expiration of the warning».
Calculation of payments
To calculate the payments and compensations due to an employee on maternity leave, the amount of average earnings is used. It is calculated according to the methodology presented in the regulations, approved. government decree “On the peculiarities of the calculation procedure...” dated December 24, 2007 No. 922 (hereinafter referred to as the Regulations). The specified algorithm is uniform for calculating payments in the described situations (Part 1 of Article 139 of the Labor Code).
According to this methodology, to calculate average monthly earnings, it is necessary to sum up all types of payments provided for by the employee’s remuneration system for the last 12 months (clause 4 of the Regulations). In this case, periods when the maternity leaver has already begun to receive pregnancy or care benefits should be excluded (clause 5 of the Regulations). If, in connection with this, the entire last year falls out, for the calculation either data from the previous period is used (clause 6), or the average earnings are to be determined based on the employee’s current official salary (clause 8 of the Regulations).
Registration of maternity benefits after the liquidation of a branch
Employees dismissed during the liquidation of a branch on maternity leave are entitled to receive state benefits. Thus, pregnant women are guaranteed this right under subsection. “b” clause 9 of the procedure and conditions for appointment and payments, approved. by order of the Ministry of Health and Social Development dated December 23, 2009 No. 1012n (hereinafter referred to as the Procedure and Conditions), and for employees with children under 1.5 years old - sub. “c” and “d” paragraph 39.
In accordance with sub. “b” clause 16 of the Procedure and Conditions, dismissed pregnant women in order to receive benefits from the insurer, which is now the territorial body of the Social Insurance Fund, must submit:
- statement;
- sick leave;
- certified in the manner established by the decree of the Presidium of the Supreme Soviet of the USSR “On the procedure for issuing and certification...” dated 08/04/1983 No. 9779-X, an extract from the work record book with information about the last place of employment;
- a certificate from the territorial office of the employment service declaring the dismissed employee unemployed;
- a certificate from the local branch of the Social Insurance Fund about the non-assignment of state benefits at the place of residence, if the maternity leave applies to the Social Insurance Fund authority not at the place of residence.
The state allowance for caring for a child until he reaches 1.5 years of age is assigned from the day the child is born (if a pregnant woman is fired). Employees with children who were dismissed due to the liquidation of a branch and who are actually caring for the child are assigned benefits in accordance with the Law “On State Benefits...” dated May 19, 2005 No. 81-FZ.
As you can see, the dismissal of an employee on maternity leave due to the liquidation of a branch has a number of features. In particular, the fact that the branch is located in the same locality as the parent company or outside it is important.
If the branch is located in the same city as the company’s main office, the employer will not be able to unconditionally dismiss a maternity leave worker by giving him 2 months’ notice. In this case, we are most likely talking about a branch as a department located at a different address in the same locality - with the liquidation of such a structural unit, only a reduction in the number of personnel is possible, which does not include those on maternity leave.
If the branch is located in another area, its liquidation has the same consequences for all employees employed there as during the liquidation of the organization. Everyone is subject to dismissal - even those on maternity leave.
Legislation provides guarantees to certain categories of citizens in the implementation of labor relations. Among other things, special conditions for dismissal at the initiative of management are provided for women while they are on maternity leave (maternity leave).
Possibility of dismissal
Maternity leavers include women who have exercised their legal right to maternity and child care leave. Such leave is provided at the request of the employee, and management does not have the right to refuse to provide it. The legislation shares the legal consequences in labor relations for the following groups of women on maternity leave:
- pregnant women;
- women caring for children under 1.5 or 3 years of age.
For pregnant women, dismissal at the initiative of superiors is not allowed, except in cases of termination or termination of activity. For women who have given birth to a child and are engaged in caring for him before reaching the age of 3 years, the list of possible grounds for forced dismissal is much wider and is not limited only to liquidation.
To comply with the requirements of the law when dismissing a maternity leaver during the liquidation of an organization, it is necessary to comply with the dismissal procedure provided for by the Labor Code of the Russian Federation.
The procedure for dismissing a maternity leaver during the liquidation of an enterprise is discussed below.
The video below will tell you whether a pregnant woman can be fired:
The procedure for dismissing a maternity leaver in connection with the liquidation of an enterprise
Stages
The regulated procedure for terminating an employment contract with a maternity leaver provides for the following mandatory steps:
- the emergence of legal grounds for liquidation of a legal entity (bankruptcy, decision of the founders, etc.);
- making a decision to dismiss all staff due to liquidation, including maternity leave;
- employee notification procedures;
- payment of all necessary benefits to the dismissed employee;
- termination of an employment contract and preparation of personnel records;
- issuance of documents to maternity leave.
The dismissal of a maternity leaver is considered legal if management was able to comply with all legal requirements not only with regard to paperwork, but also with regard to procedural notice periods.
Read below about what is required to dismiss a maternity worker during the liquidation of an organization.
Prerequisites and information
To comply with the legality of the procedure for dismissing a maternity leaver, the necessary conditions are:
- the fact that a woman is pregnant or is on maternity leave (confirmed by a certificate from a medical institution and personnel records documents;
- legal fact of liquidation of the enterprise (bankruptcy application or decision of the owners of the organization);
- compliance with the procedure and deadlines for notifying the employee.
If one of these elements is missing or is not met, the legality of the dismissal of the maternity leave may be challenged in court. Such reasons include the fact of imaginary liquidation, which may subsequently be declared illegal with the restoration of the labor rights of the dismissed employee.
Procedure
The main requirement for compliance with the procedure for dismissing a maternity worker is her proper notification in the event of liquidation of the enterprise. To do this, it is necessary to provide the following features:
- notification must be made no later than two months before the termination of the employment relationship;
- the notice must be served in a manner that allows reliable proof of its receipt.
The simplest scenario is to provide a written notice, which the maternity leaver will sign with her own hand. If personal service is not possible, written notice will be sent to the maternity leaver, and evidence of compliance with the procedure will be a document confirming receipt by mail.
In case of refusal of a personal signature or refusal to receive a notice, management has the right to draw up an appropriate commission act with the participation of representatives of the employer. This act will act as evidence in the event of a legal dispute regarding wrongful dismissal.
The video below will tell you about maternity payments in case of bankruptcy of an enterprise:
Payments
When terminating an employment relationship with a maternity leaver, the legislation provides additional guarantees in the form of payment:
- dismissal benefits in the amount of one month's earnings;
- payment of average earnings, taking into account severance pay for the period of employment, but not more than two months (at the request of the employment service, this payment can be extended for another month);
- payment of the entire amount of wage arrears.
The maternity leaver must receive all types of payments before the actual dismissal from work, otherwise the procedure for terminating the contract will be considered illegal.
Judicial practice on the dismissal of women on maternity leave during the liquidation of an enterprise is discussed below.
Arbitrage practice
The judicial practice of courts of general jurisdiction follows the path of maximum respect for the rights and legitimate interests of women on maternity leave who are dismissed from work. Courts carefully examine the grounds and procedure for terminating an employment agreement, including compliance with deadlines.
- By the decision of the Oktyabrsky District Court of the Arkhangelsk Region in 2013, the rights of women dismissed during liquidation in violation of the notice period were restored. More than 2 months passed after the notice was served, after which the liquidation was terminated and the LLC carried out normal activities for another month. Then the founders nevertheless accepted the termination of activities, but the previously issued notice was used to dismiss the women on maternity leave. The court found this procedure to be a violation of the law and restored the rights of the employees.
- In 2013, the Vologda Regional Court considered a complaint against a decision of one of the district courts regarding the violation of the rights of a maternity leaver when making payments during the dismissal process. During the consideration of the complaint, the court found that not only did the woman not receive payments, but after her dismissal, the enterprise actually returned to normal economic activity. The court upheld the complaint, as a result of which the woman returned to work, receiving compensation for the forced absence and infliction of moral damage.
The dismissal of a pregnant woman during reorganization is discussed in this video: