Loopholes in the law when dismissing dekretnits
In accordance with the current Labor Code of the Russian Federation, the dismissal of a pregnant employee who is on maternity leave, or the mother until her child reaches the age of three years, at the initiative of the employer, is unacceptable. However, there are a number of exceptions in this document, according to which the employer has the right to dismiss an employee on maternity leave. Olga Primova, head of the practice of disputes with state bodies of the Status Quo legal center, lists loopholes in the legislation that can be used when dismissing employees on maternity leave.
It is important to note that there is no official notion of “maternity leave”. In practice, it is understood as maternity leave and parental leave. The list of reasons for terminating an employment relationship with a woman on maternity leave is currently exhaustive, we will consider each of them separately.
1. There is no ban on the termination of an employment contract if an employee is dismissed at will upon leave, including for child care.
An employee has the right to file a letter of resignation at any time (part 1 of article 80 of the Labor Code of the Russian Federation, Letter from the Federal Labor Agency No. 1551-6 of September 5, 2006). In this case, the employee must submit an application in writing, at least two weeks before the date when the completion of the work is planned, unless otherwise specified in the employment contract or in addition to it. That is, if the parties stipulated in the contract that there is no need to wait two weeks from the date of notification of the employer, dismissal may occur on the same day when the employer receives the application.
On the day of the dismissal of an employee, the preservation of his workplace ceases. On the same day, he needs to issue a work record and make a final payment, for example, to pay compensation for unused vacation.
At the same time, a situation is possible when an employee took an annual leave in advance and did not work all the days off. For example, a woman could take such a leave before the leave to care for a child immediately after the maternity leave (article 260 of the Labor Code of the Russian Federation). In this case, upon dismissal, the employer has the right to withhold over-paid vacation pay (for unworked vacation days), but not more than 20 percent of the amount of salary paid upon dismissal.
If the amount is more than 20 percent, then you can ask the employee to return the unworked vacation pay on a voluntary basis. Unfortunately, it will not be possible to recover this amount in court (Part 2 of Article 137, Part 1 of Article 138 of the Labor Code of the Russian Federation, Determination of the Supreme Court of the Russian Federation of October 25, 2013 No. 69-KG13-6).
In general, dismissing an employee during the period of maternity leave to take care of a child at his own will, standard dismissal documents are issued. In particular, it is necessary to issue an order for dismissal and make an entry in the workbook.
2. In addition to self-dismissal, there is still the possibility of terminating an employment contract with a woman on maternity leave under an urgent employment contract for a certain period of time or for a temporary absence of the main employee, since the expiration of the employment contract is not related with the initiative of the employer and comes regardless of his will.
In this regard, when an employee is dismissed on this basis, the employer is not obliged to take into account the additional guarantees established by the labor law for individual cases of dismissal of employees on the employer’s initiative (for example, in accordance with article 261 of the Labor Code of the Russian Federation, guarantees for pregnant women as well as women with children). The Labor Code of the Russian Federation does not provide for the obligation of the employer to extend a temporary employment contract with a person with children under the age of three years until the child reaches the specified age.
This position is confirmed by the prevailing judicial practice (Appeal definition of the Krasnoyarsk Regional Court of January 24, 2018 in case No. 33-1067 / 2018; Appeal definition of the Moscow City Court of December 6, 2016 in case No. 33-43583 / 2016; Appeal definition of the Moscow Regional Court dated May 13, 2015 in case No. 33-10869 / 2015 and others).
The issue of termination of an employment contract with a pregnant woman after the expiration of the employment contract is somewhat different, in this case, judicial practice is not so uniform.
There is judicial practice, according to which dismissal in such a situation is lawful (for example: Appeal definition of the Nizhny Novgorod Regional Court of June 20, 2017 in case No. 33-5859 / 2017; Appeal definition of the Saratov Regional Court of July 9, 2015 in case No. 33-4048 other). In the cases under consideration, the courts proceed from the following: the obligation to extend the term of the employment contract until the end of pregnancy arises with the employer only after a written application has been received from the employee for the extension of the contract term and a medical certificate.